477 S.W.2d 438 | Mo. Ct. App. | 1972
Our previously issued preliminary writ of prohibition is hereby made absolute.
Bobby Stone, or so it is alleged, was injured in a gas explosion that ensued from his efforts to ignite the pilot light of a swimming pool boiler located on the premises of a resort motel. Bobby and his wife, Ginger, filed suit in the Circuit Court of Taney County against certain named defendants (some of whom are relators here) averring that the explosion resulted from the defendants’ negligence and “was caused from gas which had leaked from [an underground] pipe going through the aforesaid patio west of the swimming pool.” Pursuant to V.A.M.R. 58.01,
. The order if obeyed, requires the [defendants to deliver possession of the pipe to plaintiffs or permits the plaintiffs to remove and take possession of the pipe]. This may not be required under the rule.” State ex rel. Emge v. Corcoran, Mo.App., 468 S.W.2d 724, 725-726(1). Moreover, and with no intent to question the motives of plaintiffs or their counsel in the pending cause, “[undoubtedly there are cases in which an order [requiring a party to deliver unfettered possession of an important article of evidence to his adversary] might be prejudicial to the interests of a party and easily subject to the commission of fraud by the party seeking the discovery and inspection” (Petruk v. South Ferry Realty Company, 2 A.D.2d 533, 157 N.Y.S.2d 249, 253), or result, through testing or otherwise, in the loss, destruction or material alteration of the object. See cases collected in footnote 1, 4A Moore’s Federal Practice .¶ 34.19[5], pp. 34-113 to 34-114; 27 C.J.S. Discovery § 79, at p. 246.
. Bule 58.01, as pertinent to the matter at hand, reads:
“ . . . any party may move the court, . for an order upon another party (1) to produce and permit the inspection . . . by or on behalf of the moving party, of any designated . . . 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 Bule 57.01 (b) and which are in his possession, custody or control; or (2) to permit entry upon designated land or other property or any designated object or operation thereon within the scope of the examination permitted by Bule 57.01 (b).”
. Neither does “produce” constitute a metonym for “delivery” or “to deliver,” which terms import a surrender or parting with possession as the transfer of possession from one person to another. 26A C.J.S. Delivery pp. 165-167; Webster’s New World Dictionary of the American Language, College ed., p. 388.