HERBERT H. DOWELL, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SOUTHERN PACIFIC COMPANY, Real Party in Interest.
S. F. No. 19553
In Bank
Dec. 14, 1956.
47 Cal. 2d 483
No appearance for Respondent.
A. B. Dunne, G. Blandin Colburn, Jr., and Dunne, Dunne & Phelps for Real Party in Interest.
In September, 1955, the petitioner Herbert Dowell suffered personal injuries resulting from the alleged negligence of the Southern Pacific Company, the real party in interest and hereinafter called the company. Shortly thereafter the petitioner was taken to a hospital. On the following day a claims
In November, 1955, the petitioner commenced an action against the company in the respondent court, seeking the recovery of damages for his injuries. Thereafter he presented to the court a motion under
The company opposed these motions but at no time filed any counteraffidavits. On the occasion of the second motion, counsel for the company offered to permit the plaintiff to inspect and copy the statement but only on the condition that he execute an affidavit that he did not remember the facts and circumstances of the accident and that an inspection was necessary to refresh his memory. The plaintiff did not accept this offer although as noted he averred that he did not recollect what he had said in the statement.
The petitioner relies mainly on the case of Holm v. Superior Court, 42 Cal. 2d 500 [267 P.2d 1025, 268 P.2d 722], and urges that the trial court abused its discretion in refusing an order of inspection. The company asserts in reply that the Holm case has no application. There are several points of similarity in the two cases which are of compelling significance. The Holm case emphasizes the importance of the requirement of materiality in the document sought to be inspected. It was there said at page 505: “Where the use of the statutory bill of discovery is denied by our courts it usually is because the information sought to be obtained is not relevant or material to аny of the issues in the case.” In that proceeding the materiality of the statement sought to be produced ap
Here the court has acted and denied the motions for inspеction. As the order is not appealable there is no plain, speedy or adequate remedy in the ordinary course of law and mandamus is the appropriate remedy to obtain the relief sought. (McClatchy Newspapers v. Superior Court, 26 Cal. 2d 386 [159 P.2d 944]; Proctor & Gamble Mfg. Co. v. Superior Court, 124 Cal. App. 2d 157 [268 P.2d 199].)
In approaching the problem it is noted that the “trend of judicial decisions is to relax the rules which relate to the taking of evidence by ancillary proceedings of which the inspection of documents is one mеthod. . . .” (Union Trust Co. v. Superior Court, 11 Cal. 2d 449, 462 [81 P.2d 150, 118 A.L.R. 259]; 18 C.J. § 116 and cases cited.)
It is also observed that the principles of equity enter into the determination of an application for discovery and also in a mandamus proceeding to compel appropriate action. It was well said in Potomac Oil Co. v. Dye, 10 Cal. App. 534 at 537 [102 P. 677]: “Mandamus, although it is an extraordinary legal remedy, is in the nature of an equitable interference supplementing the deficiencies of the common law. It will ordinarily be issued where a legal duty is established, and no other sufficient means exist for enforcing it. . . . Its issuance is not necessarily a matter of right, but lies
In the light of the foregoing principles it appears beyond question that the petitioner has shown a substantial right in his application. It is authorized by statute and should be enforced when the necessary prima facie showing has been made and there is no adequate showing to the contrary.
It sufficiently appears that the motions of the petitioner presented a prima facie case in favor of the relief sought. They disclosed the situation of the parties at the time the statement was made and the document signed. 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 advantagе of the company to obtain from a possible claimant an account from his standpoint of the facts surrounding the accident and to obtain it as soon as possible after it occurred. Certainly it may not be denied that one of the purposes of an interview with a possible claimant as soon as possible after an accident is to obtain information to be used in resisting an unjust or exorbitant claim or in aid of adjustment thereof. But in obtaining and using such information against an adverse party the conduct of the possible defendant in an action on the claim should be attended with fairness and without overreaching.
It may also fairly be assumed that a patient in a hospital, taken there immediately after an accident for observation or treatment, would then be in a condition of nervous shock and remain so for some time thereafter. Here, as noted, the statement was obtained within 24 hours after the accident. If mentally distraught in any way, he might not during that period be in such a normal condition as would enable him to recollect just what had happened at the time of the accident or to appreciate the necessity of safeguarding his rights under such circumstances. He was without the aid of counsel and may not have realized that he had the right to refuse to
To encompass further the probabilities it may be that a person undergoing examination under the circumstances here shown would then be possessed of a clearer recollection of what had taken place than he would have thereafter. In this respect the statement might have reciprocal advantages. In such a case the advantage to the person making it would be as an aid in refreshing his recollection. In this connection the company asserts that if a coрy of the statement be given to the petitioner he will be able to reconcile his testimony at the trial with what he had said in the statement, resulting in a denial to the company of the benefit of cross-examination and to its prejudice in the presentation of its defense. The company would thus seek to obtain an advantage over the petitioner on the trial of the case by not permitting an inspection. At the same time it would deprive the petitioner of any advantage he might gain from an inspection. In taking this attitude the company is assuming such an obvious inequitable position toward the petitioner as to require the intervention of a court to prevent what may rightly be called a failure of justice.
The State of New York has taken legislative cognizance of abuses which might arise in a situation such as is here presented. By section 270-b of thе Penal Law of that state it was made a misdemeanor for any person to enter a hospital, for the purpose of obtaining a general release or a statement written or oral from any person confined in the hospital with reference to personal injuries, within 15 days after the injuries were sustained, unless the person injured has signified his willingness, in writing and at least five days prior to making the statement, that he is willing to make it. In Bearor v. Kapple, 24 N.Y.S.2d 655, the cоurt granted an application for inspection even though the injured person was not in a hospital at the time the statement was made but was in his own home. The application was granted pursuant to a section of the Civil Practice Act, and “in the interest of substantial justice.”
Under the circumstances here disclosed we conclude that the company has advanced no valid reason why a copy of the
Let a peremptory writ issue requiring the respondent court to set aside its order denying the petitioner an inspection of the document in question and to issue an appropriate order of inspection with the right to take a copy as prayed.
Gibson, C. J., Carter, J., Traynor, J., and Spence, J., concurred.
SCHAUER, J., Dissenting.—It is my view that petitioner has not shown that the trial court abused its discretion in refusing the inspeсtion, and that the writ should be denied.
From the record it appears that in September, 1955, petitioner (sometimes herein called plaintiff) suffered personal injuries resulting from alleged negligence of Southern Pacific Company, the real party in interest herein. The following day a claims investigator of Southern Pacific (sometimes herein called defendant) visited petitioner in the hospital and took his written statement “abоut how the accident occurred and about the injuries sustained by Petitioner.” Petitioner signed the statement, but has received no copy thereof. In November, 1955, he filed an action against Southern Pacific in respondent court, seeking recovery for his injuries, and at the same time moved under
The petition for mandate and plaintiff‘s affidavits allege that among the issues in plaintiff‘s action are defendant‘s negligence and plaintiff‘s contributory negligence; that plaintiff‘s statement secured by the claims investigator “is to be used by the defendant at the time of trial” of the action; that plaintiff doеs not remember what he said in the statement; that the evidence contained therein is material to the issue of defendant‘s liability and of plaintiff‘s contributory negligence; that the statement would be admissible in the trial of the action.
No claim of unfairness, fraud, inducement, coercion or overreaching in respect to the statement is made.
Defendant, in answer to the petition for mandate, avers that it has filed an answer tо plaintiff‘s complaint in the basic action, alleging that plaintiff was guilty of contributory negligence; that its claims adjuster took the signed statement from plaintiff but that it “has not yet determined whether or when said statement will be used in said pending action“; that at the second hearing on plaintiff‘s motion defendant‘s counsel offered to permit plaintiff to inspect and copy the statement upon the condition that plaintiff would execute an affidavit that he did not remember the facts and circumstances of the alleged accident and that inspection of the statement was necessary to refresh his memory; that such offer of counsel was not accepted.
Petitioner, in reliance upon Holm v. Superior Court (1954), 42 Cal. 2d 500 [267 P.2d 1025, 268 P.2d 722], urges that the trial court had no discretion but to order the inspection he sought. In that personal injury case, contrary to the present situation, the trial court, rather than refusing to order thе inspection, granted plaintiff‘s motion to inspect a statement obtained from plaintiff by defendant‘s claims investigator. Defendants then petitioned for prohibition to restrain the court from enforcing its inspection order. This court held, adversely to defendants’ contentions, that the statement was not within the confidential attorney-client relationship and that it could properly be reached under
As a foundation for the making of an order of inspection, one of the indispensable requirements that must be made to appear by an affirmative and substantial showing is that the document that is sought to be inspected contains evidence that is material to an issue whiсh is involved in the action or proceeding with respect to which the order of inspection is sought. (Union Trust Co. v. Superior Court (1938), supra, 11 Cal. 2d 449, 454; Austin v. Turrentine (1939), 30 Cal. App. 2d 750, 761 [87 P.2d 72, 88 P.2d 178]; Shell Oil Co. v. Superior Court (1930), supra, 109 Cal. App. 75, 80.) Thus, the affidavit in support of the demand for inspection must clearly show that the desired document contains competent and admissible evidence which is material to the issues to be tried, and in so showing the affiant cannot rely merely upon the legal conclusion, stated in general terms, that the desired documentary evidenсe is relevant and material. (McClatchy Newspapers v. Superior Court (1945), 26 Cal. 2d 386, 396-397 [159 P.2d 944]; Proctor & Gamble Mfg. Co. v. Superior Court (1954), 124 Cal. App. 2d 157, 161 [268 P.2d 199]; Los Angeles Transit Lines v. Superior Court (1953), 119 Cal. App. 2d 465, 467-468 [259 P.2d 1004]; Shell Oil Co. v. Superior Court (1930), supra, 109 Cal. App. 75, 80-87.) And in the exercise of its discretion in passing upon a motion for an inspection order, the court is not required to accept the
Further, the statute (
Applying thеse several rules to the present case, it appears to me that petitioner, upon whom the burden of proof rests, has not shown himself entitled to the writ he seeks. In the first place, the affidavits in support of his motion to inspect allege only the legal conclusion that the evidence contained in the statement is material to the issues to be tried, and, further, he has not accepted defendant‘s offer to produce the statement if plaintiff would execute his affidavit stating that he did not remember the facts of the alleged accident upon which his action against defendant is based. (If he does not need the statement to refresh his recollection as to the facts, then for what reason does he need it?) In addition, the complaint and the motion for inspection were filed only two months after the alleged accident, аnd at a time when plaintiff‘s memory of the occurrence was presumably relatively fresh. As pointed out by defendant, there were thus ample grounds for the trial court, in the exercise of its discretion, to decide that plaintiff had not made an adequate showing of materiality or necessity for inspection in the interest of justice and that, to the contrary of petitioner‘s claim, production of the statement would tend to suppress the truth and thwart the administration of justice rather than aid therein. If he did not remember the facts of the accident, and in truth needed the memorandum to refresh his memory, then upon his affidavit to that effect the statement would have been produced by de
Since the record before us indicates that plaintiff has failed to show either the materiality of the desired document, or that its production will serve the cause of justice, the alternative writ should be discharged and the peremptоry writ sought should be denied.
McComb, J., concurred.