203 S.W.2d 407 | Mo. | 1947
This is an original proceeding in prohibition seeking to prevent enforcement of an order requiring relator to answer the following interrogatories:
"1. Directing your attention to the casualty described and referred to in plaintiff's petition filed herein, did the operator of your street car obtain the names and addresses of any persons known by him to have been present at the time and place of the casualty by being found then and there by said operator upon said street car?
"2. If your answer to Interrogatory No. 1 is in the affirmative state the names and addresses of such persons.
"3. Did your said operator obtain the names and addresses of any persons known by him to have been present at the time and place of *678 the casualty by being found then and there by him other than upon your said street car?
"4. If your answer to Interrogatory No. 3 is in the affirmative state the names and addresses of such persons.
"5. Did any person or persons in your employ other than your operator, obtain the names and addresses of any persons present at the time and place of the casualty by being found then and there by any such employee?
"6. If your answer to Interrogatory No. 5 is in the affirmative state the names and addresses of such persons whose names and addresses were so obtained."
[1] These interrogatories were asked in a wrongful death case involving a collision between relator's street car and a truck, which was driven by Ben H. Luton (who was killed) father of the plaintiff Chester D. Luton, a minor. Relator admits that we held Question No. 1 to be proper in State ex rel. Williams v. Buzard,
We adhere to our ruling in the Williams case that Question No. 1 was proper. We think it is always proper to ask any eyewitness to the occurrence, involved in a case, who else was present. This is material to fix the time and place and surrounding circumstances, and as said in State ex rel. Evans v. Broaddus,
[2] We likewise see nothing wrong with Question 3. It does not go beyond the scope of Question 1 because it is confined to "persons known by him (the operator) to have been present at the time and place of the casualty." Therefore, it is within our ruling in the Williams case. This question could include actors in the occurrence, whose names relator admits should be disclosed; for example, in the case of a collision, the driver of the other vehicle. Under our rulings it would also include passengers in the other vehicle. If there should be a collision between one of relator's street cars and busses, the operator of one might well obtain the names of all the passengers on both before they left the vehicles involved. Of course, if the operator got names of persons in the street who were not "known by him to have been present at the time and place of the casualty" there would be no duty to disclose them. Therefore, if the only persons found at the scene by the operator outside his car (or the other vehicle involved) were not known by him to have been present at the time and place of the casualty, relator's proper answer to Question 3 would be "no." We hold that the court had authority to require relator to answer Questions 3 and 4.
[3] Relator makes constitutional objections to all these questions, which we consider to be without merit, namely: that the interrogatories constitute unlawful search and seizure of relator's personal, private and confidential property in violation of the Fourth Amendment to the Constitution of the United States and Section 15 of Article I of the Constitution of Missouri 1945, and deprive relator of its property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States and Section 10 of Article I of the Constitution of Missouri 1945; citing State ex rel. Atchison, T. S.F.R. Co. v. Trimble,
Relator concedes that interrogatories under the Federal Rules are much broader in scope; and their validity is well established. In Hickman v. Taylor, (U.S.), 67 S. Ct. 385, 91 L. Ed. 330, the Supreme Court said that "public policy supports reasonable and necessary inquiries"; and stated the limits of such inquiries. The right of discovery is too ancient and has[410] had too long a history in its development in equity to be questioned now on such constitutional grounds. It has also been said "that when a party seeks relief in a court of law, he must be held to have waived any privilege, which he otherwise might have had, to withhold testimony required by the rules of pleading or evidence as a basis for such relief." [Fleming v. Bernardi, 1 F.R.D. 624.] Likewise, "the search and seizure clause of the Fourth Amendment was not intended to interfere with the power of the courts to compel, through a subpeona duces tecum, the production, upon a trial in court, of documentary evidence"; and "an order for the production of books and papers which limits the examination to such matters as are pertinent to the issue, does not infringe the constitutional guaranty against unreasonable search and seizure." [47 Am. Jur. 538, Sec. 58, and as to corporate records see Section 59; however, as to incriminating documents, see 17 Am. Jur. 22, Section 30; see also State ex rel. St. Louis Union Trust Co. v. Sartorius,
[4] Relator also re-argues its contention in the Williams case, decided in our opinion on its motion for rehearing therein, that all of these questions call for hearsay because the names sought were taken by mere employees and not "by an officer, director, etc. (of relator) . . . competent to testify in its behalf." [For discussion on answering interrogatories see 1 Carr — Missouri Civil Procedure, 700-708, Sec. 782.] It says that in the Williams case we overlooked the words "competent to testify." Relator argues that its officer, director or managing agent who is required to answer is not *681 "competent to testify" as to what persons were present on its car at the time of the casualty because he would have to obtain this information by hearsay. However, relator's construction of Section 85 is too narrow. The interrogatories are addressed to parties and not to individual witnesses who are not parties. As applied to a corporation, it does not mean that the officer answering for it must be competent to testify to the truth of facts, shown by documentary evidence, such as required reports in its files and records. He is answering for the corporation and not for himself, as was likewise true on bills of discovery in equity from which interrogatories to parties developed. [See 17 Am. Jur. 26, Sec. 39; 27 C.J.S. 17, Sec. 10; for similar application of Federal Rule 33 see Holler v. General Motors Corp., 1 F.R.D. 296; Eiseman v. Pennsylvania R. Co., 3 F.R.D. 338; Terrell v. Standard Oil Co., 5 F.R.D. 146; De Bruce v. Pennsylvania R Co., 6 F.R.D. 403.] It has even been held that interrogatories to United States are proper, when it is the adverse party, over the objection that the answers should be "based on personal knowledge and not hearsay." (United States v. General Motors Corp., 2 F.R.D. 528; see also 6 Cyc. of Fed. Procedure 805, Sec. 2272.) The party serving such interrogatories on a corporation should have the right to designate therein a particular officer whom he desires to answer the interrogatories or to leave it with the adverse party to select an officer to make the answers. [See 2 Moore's Federal Practice 2623, Sec. 33.04 and 1946 Supplement, p. 221.] This is the purpose of our Rule 3.19. It was possible to find out what any corporate officer personally knew, long before the adoption of Section 85 of our new Code, by taking his deposition. We reaffirm our ruling in the Williams case on this point, and hold the first four questions to be proper interrogatories.
[5] However, Question 5 is not proper because it is not like the other questions confined to persons "known to have been present" by any such employee (other than the operator) of relator. It is not enough to designate the persons whose names are sought only as "present at the time and place of the casualty" or as being found there, because the matter of whether or not they were actually present at the time of the occurrence would be left to hearsay. This question does not even ask if any of relator's employees (other than its operator) were themselves present at the time and place of the casualty so that they could[411] know whether any persons were present other than the occupants of the two colliding vehicles. (In this case all of those in the truck were killed in the collision.) Thus this question seeks to obtain information obtained by defendant's employees, who might not have been present at the occurrence, from persons whose presence there would be known to them only by hearsay. We have held this to be beyond the proper scope of interrogatories both in the Williams case and in State ex rel. Thompson v. Harris, *682
[6] The order of the Circuit Court was proper in so far as it required relator to answer the first four questions. Since Question 5 was beyond the scope of interrogatories under our Code provisions (as was Question 6 subsidiary to it), this part of the order was in excess of the Court's authority and jurisdiction.
Therefore, our rule is made absolute to prohibit respondent judge from requiring answers to Questions 5 and 6, and in all other respects, our rule is discharged. All concur.