106 S.E. 224 | S.C. | 1921
Concurrence Opinion
I concur in the judgment affirming the order of the Circuit Judge, but, as the appeal raises squarely the issue whether or not the documentary
In the case of Cartee v. Spence, 24 S. C. 550, the Court throws put a very strong intimation that it is so limited, but declines specifically to decide the question. So in Jenkins v. Bennett, 40 S. C. 393, 18 S. E. 929, and Parker v. Railroad Co., 48 S. C. 364 26 S. E. 669, the doubt suggested in Car-tee. v. Spence was not resolved, but passed over as not being involved, all these opinions having been written by the same great Judge (Chiee Justice McIver.) No subsequent case has been found by me or pointed out by counsel.
Even an intimation from so profound an authority would incline me to follow it almost without question, if it were not so opposed to my preconceived conviction of the purpose of the section, the very terms of the section, and the numerous authorities upon the subject. The question is an important one of practice, and I think it should be settled in view of the doubts suggested in the cases above.cited.
In the first place, the terms of the section impose no limitation upon the character of the documentary evidence other than “containing evidence relating to the merits of the action or the defense therein.” This is extremely broad, and covers not only evidence which the adversary may expect to use in his interest, but such as the moving party may desire to obtain in his interest. It must be assumed that the exercise of the discretion lodged in the Circuit Judge will prevent an abuse of this privilege in an attempt to embark upon a “fishing excursion” or to pry into the private concerns of the adversary.
The particular controversy between these parties demonstrates the utility of the proceeding. Here is an admitted contract covering extensive farming operations, the compensation of the plaintiff to be determined upon the basis of net profits; all record evidence of these operations is in the hands of the defendant; it is essential to the plaintiff’s interest that he have access to these records.
That the applicant was, under the circumstances, entitled to the order is established by the following authorities:
“He is entitled to production or inspection only when the same is material and necessary to establish his cause of action.” 14 Cyc. 370.
“A production or inspection of papers will be granted where the applicant has an interest or right in. them which justifies an unlimited inspection ánd the right is the attendant of the relief to which he is entitled. This is the case with books * * * of an employer at the instance of his employee, where the employee is to be paid by a percentage of the business done by the employer, or of books showing the profits of a joint venture, at the instance of one of the parties interested therein. In all such cases the production of all books and documents can be compelled on the ground of common interest.” 14 Cyc. 369; 18 C. J. 1117, 1119.
“The remedy can be granted only to obtain the disclosure of facts or the production of documents in his adversary’s knowledge or possession or under his control, which are material and necessary to make out his own case” — that is, the appellant’s. 9 R. C. L. 174.
“The right does not extend to a discovery of * * evidence which relates exclusively to the 'adverse party’ case.”
Lead Opinion
March 12, 1921. The opinion of the Court was delivered by For the reasons assigned by his Honor the Circuit Judge, the order made by him is affirmed.
Mr. JUSTICE WATTS and Mr. JUSTICE FRASER concur.
Mr. JUSTICE COTHRAN: I concur in the judgment affirming the order of the Circuit Judge, but, as the appeal raises squarely the issue whether or not the documentary *446 evidence to an inspection of which a moving party may be entitled under section 427 of the Code is limited to such as the adverse party expects to use on the trial of the case, and does not include such as the moving party may desire to obtain from his adversary for his own use, I think that this issue should be determined.
In the case of Cartee v. Spence,
Even an intimation from so profound an authority would incline me to follow it almost without question, if it were not so opposed to my preconceived conviction of the purpose of the section, the very terms of the section, and the numerous authorities upon the subject. The question is an important one of practice, and I think it should be settled in view of the doubts suggested in the cases above cited.
In the first place, the terms of the section impose no limitation upon the character of the documentary evidence other than "containing evidence relating to the merits of the action or the defense therein." This is extremely broad, and covers not only evidence which the adversary may expect to use in his interest, but such as the moving party may desire to obtain in his interest. It must be assumed that the exercise of the discretion lodged in the Circuit Judge will prevent an abuse of this privilege in an attempt to embark upon a "fishing excursion" or to pry into the private concerns of the adversary. *447
It is manifestly in the interest of a determination of a controversy according to the justice and right of the matter; it works against surprise; it is conducive to that preparation of a case which insures dispatch in the conduct of the litigation and an intelligent disposition of the real points of controversy.
The particular controversy between these parties demonstrates the utility of the proceeding. Here is an admitted contract covering extensive farming operations, the compensation of the plaintiff to be determined upon the basis of net profits; all record evidence of these operations is in the hands of the defendant; it is essential to the plaintiff's interest that he have access to these records.
That the applicant was, under the circumstances, entitled to the order is established by the following authorities:
"He is entitled to production or inspection only when the same is material and necessary to establish his cause of action." 14 Cyc. 370.
"A production or inspection of papers will be granted where the applicant has an interest or right in them which justifies an unlimited inspection and the right is the attendant of the relief to which he is entitled. This is the case with books * * * of an employer at the instance of his employee, where the employee is to be paid by a percentage of the business done by the employer, or of books showing the profits of a joint venture, at the instance of one of the parties interested therein. In all such cases the production of all books and documents can be compelled on the ground of common interest." 14 Cyc. 369; 18 C.J. 1117, 1119.
"The remedy can be granted only to obtain the disclosure of facts or the production of documents in his adversary's knowledge or possession or under his control, which are material and necessary to make out his own case" — that is, the appellant's. 9 R.C.L. 174. *448
The ruling is the opposite of the intimation in Cartee v.Spence, supra, and is emphasized by the immediately following declaration:
"The right does not extend to a discovery of * * evidence which relates exclusively to the `adverse party' case."
Lead Opinion
The opinion of the Court was delivered by
Eor the reasons assigned by his Honor the Circuit Judge, the order made by him' is affirmed.