Opinion
14011
March 5, 1935.
Before SEASE, J., Spartanburg, September, 1934. Affirmed.
Action by E.B. Mahaffey against the Southern Railway Company and others. From an order compelling individual defendants and agents of corporate defendant to appear for examination before trial, defendants appeal.
The order of Judge Sease is as follows:
The plaintiff has moved this Court for an order for the examination before trial of the two individual defendants herein and of the corporate defendant Southern Railway Company through two of its agents designated in the notice of motion herein. The motion is based upon Section 676 of the Code of 1932. Both of the agents of the corporate defendant, whose examination before trial is sought, were duly served with notice of this motion in accordance with the rule announced in United States Tire Co. v. Keystone Tire Sales Co. (1929), 153 S.C. 56, 64, 150 S.E., 347, 66 A.L.R., 1264.
The statute upon which the plaintiff predicates his motion "is a convenient substitute for the old bill of discovery in equity, and is largely regulated by the principles applicable to that proceeding." People's Bank v. Helms (1927), 140 S.C. 107, 112, 138 S.E., 622, 624. This remedy of discovery survives today, as Mr. Justice Cardozo in a notable opinion from the Supreme Court of the United States pointedly observes, "chiefly, if not wholly, to give facility to proof," for "cases will not be proved, or will be proved clumsily or wastefully, if the litigant is not permitted to gather his evidence in advance." Sinclair Refining Co. v. Petroleum Process Co. (1933), 289 U.S. 689, 693, 53 S.Ct., 736, 737, 77 L.Ed., 1449, 88 A.L.R., 496.
Indeed, the ruling purpose behind this statute and the remedy of discovery "is to assist and promote the administration of public justice" in Courts. People's Bank v. Helms, supra. Speaking to a federal equity rule very similar to our statute and counselling great liberality in the granting of relief similar to the immediate application, Miller Pardee v. Lawrence A. Sweet Mfg. Co. (D.C. Cal., 1925), 3 F.2d 198, 199, puts it: "The day is no longer here when the court room will furnish the arena for an exhibition of purely strategic moves on the legal chessboard." And resort to such a statute by litigants before actual trial has been well commended, "to the end that the issues may be narrowed and the time of the Court saved, as well as that expense of the trial may be reduced." Cobb Temperature Regulator Co. v. Baird (D.C. Cal., 1923), 292 F., 909, 910.
Of course, the statute is not to be employed to afford either party the opportunity to go upon a "fishing expedition," but requires that the examination be confined to facts which assist the plaintiff in establishing his cause of action. Anderson v. Kissam (C.C.N.Y., 1886), 28 F., 900.
Guided by these salutary rules, I am impelled to the conclusion that the plaintiff is entitled to examine the parties named in the notice upon the two matters set forth in such notice. Both of those matters constitute material links in plaintiff's cause of action. The first of these matters deals with the all-important issue as to just who placed upon the main line of the Clinchfield Railroad the unlighted freight cars into which the train upon which the plaintiff was traveling crashed, thus inflicting the injuries for which plaintiff seeks recovery in this action. It is essential to plaintiff's cause that he prove that these cars were thus placed by the defendants. The plaintiff, of course, of his own knowledge is ignorant just who placed the freight cars on the main line. The only persons who can testify directly as to this are the defendants and their agents, within whose peculiar knowledge such fact lies. The situation is quite analogous to that reflected in a personal damage suit against the owner of an automobile in which the ownership of the automobile is in issue. It seems settled that the plaintiff is entitled to examine before trial the defendant as to the ownership of the automobile involved. Middleton v. Boardman (1925), 240 N.Y., 552, 148 N.E., 701.
The plaintiff also seeks to examine the defendant as to railroad rules in force at the time of the instant collision, dealing with the storage in the nighttime of box cars upon the main line of the Clinchfield Railroad. This, too, is a material part of plaintiff's case. It represents one of his specifications of negligence. Such rules also lie within the peculiar knowledge of the defendants.
The defendants argue, though, that relief should be denied because the plaintiff can obtain the information in question from other sources than the defendants themselves. It might be that the plaintiff could prove both of these matters in some way other than through the examination of the parties named in the notice. However, such procedure would be unduly cumbersome, would require a considerable waste of time in the trial of the cause, and would needlessly increase the expense of the trial, both to the litigants and to the county. The granting of the motion, on the other hand, "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." Wells v. Holman (1921), 115 S.C. 443, 447, 106 S.E., 224, 225. The purpose of the statute will be clearly subserved by the granting of the relief sought.
It is therefore ordered that the defendants C.P. Rhodes and H.R. Brown and W.H. Cheney and W.B. Bull, agents of the corporate defendant Southern Railway, do appear for examination before me at Spartanburg courthouse, Spartanburg, S.C. on the 22d day of September, 1934, at 10 o'clock in the forenoon, to be examined as to the two matters set forth and referred to in the notice of motion herein.
Messrs. Depass Depass and Frank G. Tompkins, for appellants, cite: As to right to examine before trial: 134 S.C. 184; 122 S.C. 86; 114 S.E., 700; 140 S.C. 107; 15 F.2d 358; 18 C.J., 1085; 153 S.C. 56; 150 S.E., 347. Defective affidavit: 40 S.C. 393; 14 Cyc., 349.
Messrs. Nicholls, Wyche Russell, for respondent, cite: Statute displaces writ of discovery: 140 S.C. 107; 138 S.E., 622; 115 S.C. 443; 106 S.E., 224; 292 F., 909; 289 U.S. 689; 53 S.Ct., 736; 77 L.Ed., 1449.
March 5, 1935.
The opinion of the Court was delivered by
For the reasons stated by the Circuit Judge, his order, which will be reported, is affirmed.
MESSRS. JUSTICES CARTER and BONHAM and MESSRS. ACTING ASSOCIATE JUSTICES J. HENRY JOHNSON and C.J. RAMAGE concur.