Opinion
Nos. 35201 and 35219
Decided November 20, 1957.
Evidence — Privileged communications — Depositions — Physical examination and diagnosis of plaintiff by doctor for defendant — Information obtained by doctor privileged — Reports turned over to defendant's attorney privileged, when.
APPEALS from the Court of Appeals for Lucas County.
John C. Thom brought suit against the Community Traction Company to recover for personal injuries alleged to have been sustained when a bus of the traction company struck an automobile in which he was riding. Pursuant to an order of the trial court, Thom was examined by Bates, a physician, on behalf of the traction company. Bates then delivered to Riley, attorney for the traction company, pursuant to Riley's instruction, all copies of his memoranda and written reports relative to his medical examination of Thom. Bates was thereafter subpoenaed to appear before a notary public to have his deposition taken on behalf of Thom. On advice of counsel for the traction company, Bates refused to answer questions concerning his medical findings, diagnosis and prognosis as to any injuries sustained by Thom as a result of the motor vehicle collision. At the same hearing before the notary public, Riley refused to produce the memoranda and written reports which Bates had delivered to him. These refusals were made on behalf of the traction company on the ground that the information is privileged as to it, is a part of such company's preparation for trial and is not necessary to Thom in order to establish his own case.
The notary public cited for contempt both Bates and Riley, and they were taken into custody by the sheriff. They both filed petitions in habeas corpus in the Court of Appeals. The two cases were consolidated and heard together. Thom filed a motion to intervene and an answer denying that petitioners are unlawfully detained.
The Court of Appeals held that there is no privileged relationship between Bates and the traction company, that the relationship is that of master and servant, and that Bates can not lawfully refuse to answer questions, as ordered by the notary public, to the best of his recollection and unrefreshed by the memoranda which he no longer has in his possession, and ordered Bates remanded to the custody of the sheriff.
As to Riley, the court held that, by reason of the relationship of attorney and client between Riley and the traction company, Riley is not required to produce memoranda in his possession as such attorney and obtained by his client incident to the preparation of its defense, and that Riley is unlawfully detained, and ordered that he be discharged from custody.
Appeals as of right bring the causes to this court for review.
Messrs. Fuller, Harrington, Seney Henry and Mr. Gerald B. Riley, for appellant, George N. Bates, and appellee, Gerald B. Riley.
Mr. William D. Driscoll and Mr. Louis R. Young, contra.
This court is of the opinion that the information obtained by Bates in his examination of Thom, which examination was a part of the traction company's preparation for trial, and which information was turned over to the company's attorney is privileged information of the company, and that, since Thom, as shown by the allegations of his petition, is fully informed in respect to the medical findings, diagnosis and prognosis as to his injuries, the information obtained by Bates is not such a necessary link in Thom's case as to permit him to elicit such information from Bates by deposition.
The memoranda and reports which Bates delivered to Riley as attorney for the traction company are privileged, and Riley can not be required to turn them over to Thom.
"* * * this court has often held that reports and records concerning an accident in which a party is involved, which reports and records, according to the custom of such party, are turned over to and remain in the possession of such party's attorney, are privileged communications, and that no one can be required to produce them [or testify concerning them] in an action relating to such accident brought by or against such party." In re Story, 159 Ohio St. 144, 147, 111 N.E.2d 385.
The judgment of the Court of Appeals in cause No. 35201, ordering Bates remanded to custody, is reversed, and the judgment of that court in cause No. 35219, ordering Riley discharged from custody, is affirmed.
Judgment reversed in cause No. 35201.
Judgment affirmed in cause No. 35219.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS and HERBERT, JJ., concur.