124 A. 726 | R.I. | 1924
Petition for a writ of certiorari.
Petitioner is the defendant in an action on book account now pending in the Superior Court, in which the Crooker Company, plaintiff, seeks to recover for certain wooden flooring sold to defendant and laid by plaintiff in his dwelling house.
On motion of plaintiff prior to the trial, a justice of the Superior Court after a hearing, and against the objection of defendant, appointed one A. Ardrey to serve as an expert witness in the cause and also ordered the defendant to permit said expert witness to examine the flooring in the dwelling house of defendant at a time specified in the order. *38
The order was stayed in the Superior Court pending a decision in this court of the authority of the court to make such an order. In a proceeding between the same parties upon the same cause of action recently decided, we held that at common law the Superior Court had no authority to make such an order. (O'Reilly v.Superior Court,
The statutory authority to appoint expert witnesses to examine "persons, matters and things" prior to the trial although expressed in general terms is clearly not intended to be unlimited. No distinction is made in the act between civil and criminal proceedings, but the constitutional provision in regard to self incrimination is one illustration of one limitation in a criminal cause. Without attempting to fix the exact limits of the statute, it is sufficient to consider the particular question before us. Plaintiff is seeking to secure evidence, before trial, in aid of an action at law, not primarily however to establish its own case. Having furnished and laid the flooring, it presumably has proof of its right of action. In effect, it seeks to discover in advance of trial the defence to the action. This it could not accomplish by the method of a bill of discovery and there is nothing in the statute which shows an intention to give such a right as is now claimed.
Our conclusion is that the court had no authority to order defendant to admit the expert witness into his dwelling house, and so much of the order as directs this to be done is invalid. Our interpretation of the statute is further confirmed by consideration of the amendment to Section 20, which first appears in the revision of the laws in 1905, known as the Court and Practice Act, whereby it is provided that in any such action (for personal injury) the Superior Court may, upon application of the plaintiff, require the defendant to permit the attorney of the plaintiff, with or without any expert appointed under sections 18 and 19, to examine the place and cause of such injury. An obvious and perhaps primary object of the statute was to enable the defendant and later, by the amendment, the plaintiff in personal injury cases to secure in advance of the trial certain information in regard to the case of his opponent. If express authority were considered to be necessary in personal injury cases to warrant the issuance of an order requiring a defendant *41 to permit an inspection of the premises in which an accident occurred, it is reasonable to believe that, if it were intended to give a right of entry into a dwelling house in a case other than one for personal injury, a like express authority would have been given by statute.
The last paragraph of said order of the Superior Court entered on the 19th day of April, 1924, whereby the defendant is ordered to permit said expert witness to examine the flooring in the dwelling house of said defendant, is quashed.