Opinion
No. 560752.
1947-12-3
PARKHURST v. CITY OF CLEVELAND.
Harrison, Thomas, Spangenberg & Hill, of Cleveland, for plaintiff. C. C. Spangenberg, of Cleveland (Richard Green, of Cleveland, of counsel), for defendant.
Action by Walter M. Parkhurst against the City of Cleveland, a municipal corporation, to recover for alleged assault and battery on plaintiff by defendant's agent, on ground that defendant knew that its agent had vicious and malicious propensities. A notary's subpoena duces tecum was served on the general manager of the defendant's transit system, ordering him to bring all personal records pertaining in any way to defendant's agent. The general manager refused to produce the conduct record of the agent on ground that it was privileged and that its production would violate defendant's municipal code.
General manager ordered to produce conduct record.Harrison, Thomas, Spangenberg & Hill, of Cleveland, for plaintiff. C. C. Spangenberg, of Cleveland (Richard Green, of Cleveland, of counsel), for defendant.
DAY, Judge.
A notary's subpoena duces tecum was served on Walter McCarter, General Manager of the Cleveland Transit System, ordering him to bring with him all ‘personal records which pertain in any way’ to one William C. Brown, who, on February 23, 1945, was serving as a motorman on one of the defendant's street cars.
At the time the deposition was being taken before the notary public, the issues in the case had been joined. Insofar as it pertained to the question at hand, the plaintiff pleaded that the defendant through its agent maliciously assaulted and battered the plaintiff, while said agent was acting within the scope and in the course of his employment, and that the defendant knew that its said agent had ‘vicious and malicious propensities' and that the defendant was negligent in retaining the said agent in its employ. Defendant, by its general denial, denied that allegation of plaintiff's petition.
Mr. McCarter, in answer to the subpoena, produced William C. Brown's application, his training record, his test record, records showing assignments to various duties, and reference questionnaires. However, he refused to produce the conduct record of the said William C. Brown, on the ground first that it was privileged by reason of being in the hands of the defendant's attorneys, and second, that its production would violate Section 73 of the Municipal Code of Cleveland.
We will dispose of the effect of Section 73 of the Cleveland Municipal Code first. This section is found in Chapter III of the Code, entitled ‘Administrative,’ and in Division I entitled ‘General.’ The provisions of these sections in this Division are clearly designed for the purpose of organizing the administrative departments of the city government and regulating its relations with the public. They are not intended to affect the authority of courts of general jurisdiction in the State of Ohio, nor to modify the statutes of Ohio which pertain to the production of documents upon subpoena duces tecum or in an action for discovery. Were any other interpretation to be placed on this section, the city of Cleveland could resist the production of any document in any action to which it was party, and thereby place itself outside of the pale of the law.
A similar claim for immunity to production of documents was made in Edison Electric Light Company v. United States Electric, etc., Co., C.C., 44 F. 294, 299, a case involving the infringement of patents. The party resisting the subpoena duces tecum relied, among other grounds, upon a rule of the patent office which provided that no information is to be given regarding an application, etc., ‘unless it shall be necessary to the proper conduct of business before the office.’ The court, in commenting upon this ground of resistance, stated: ‘This rule * * * is inoperative to change the rules of evidence in courts of justice, both because to that extent it would be inconsistent with law, and also because the effecting of such a change is in no sense the regulation of proceedings in the patent-office.’
A Missouri statute, R.S.1919, § 11679, Mo.R.S.A. § 7885, which stated that the records of the Commissioner of Finance of the State of Missouri shall be secret and can be used only in criminal proceedings, was declared unconstitutional by the Supreme Court of Missouri, in a case in which the Commissioner refused to produce the records of his office in a civil matter before the court. The court said that the statute is ‘an unwarranted interference with the functions of the court.’ Ex parte French, 315 Mo. 75, 285 S.W. 513, 515, 47 A.L.R. 688.
Setion 73, however, contains no mandatory limitation upon the authority of the various administrative departments requiring the keeping of official records secret, and makes no references to the production of documents in a court of justice. It, therefore, has no application to the issue at hand. Citizens of Cleveland might enforce its provisions through an action in mandamus, and such an action might be defeated by reason of the reservation contained in the ordinance. This, however, is not an action in mandamus to force a governmental agency to perform its duty, but it is a lawsuit of the same character as any there might be between two private citizens.
The question of privileged communication as between attorney and client, however, presents a more difficult problem. The document demanded, the production of which was resisted, is a ‘disciplinary record’ which records accidents and violation of employer's rules that are charged to the employee. This record, apparently, is one that is kept from the time the employee is hired until his employment is terminated. The record was kept in the defendant's personnel department, and was taken up by the defendant's legal department after suit was commenced.
The mere transfer of a document from a client to his attorney does not make it privileged. Edison Electric Light Company v. United States Electric, etc., Co., C.C., 44 F. 294, 297. The court, there, said: ‘If documents are not privileged while in the hands of a party, he does not make them privileged by merely handing them to this counsel.’
To hold that a party's documents become privileged by handing them over to his attorney would be to declare Sections 11551 to 11554, G.C., meaningless and to defeat the purpose for which they were obviously intended. Section 11494, G.C., defining the attorney and client privilege, must be construed as in pari materia with the sections of the Code which confer the right of discovery and not in derogation or conflict therewith.
Was the document, the production of which is resisted here, privileged in the hands of the defendant? It is admitted that the document consisted of entries made long before the present action arose. Its materiality, relevancy and competency are not questioned. Section 11494, G.C., states that an attorney shall not testify ‘concerning a communication made to him by his client in that relation, or his advice to his client * * * .’ Thus In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492, 494, 108 A.L.R. 505, which involved an interpretation of Section 11494, the court said: ‘In order for a document to constitute a privileged communication, it is essential that it be brought into being primarily as a communication to the attorney.’
And in Smart v. Nova Caesarea Lodge, 17 O.C.D. 273, affirmed without opinion in Smart v. Masters & Wardens of Nova Ceasarea Harmony Lodge, 73 Ohio St. 367,78 N.E. 1137, the court stated the law thus: ‘It is only those things which come to an attorney by reason of, and in connection with, the matter for which the one is acting as attorney for the other and must be in the nature of communications which would not naturally have been made but for that relation. In short, there must be something confidential in the nature of the communication in order to make the attorney incompetent as a witness. Not only so, but it is settled that to render the attorney incompetent the communication must have been made in the case in the relation of attorney and client, and it must be strictly in that relation that the communication was made to render it incompetent.’
The court said that Mr. Smart's lawyer would not be an incompetent witness on every subject conversed about between him and Mr. Smart.
In an article in 146 A.L.R. 980, the author states: ‘The great weight of authority favors the view that a statement or report of a servant or agent to his master or principal in respects of matters which subsequently are involved in litigation, and is made in the ordinary course of duty and before litigation has commenced or threatened is not a privileged communication.’
In 8 Wigmore on Evidence, 3d Ed., 617, Sec. 2318, we find the following statement of the law of privileged communication: ‘* * * a document of the client existing before it was communicated to the attorney is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege.’
In the English case of Wheeler v. LeMarchant, 17 Ch.Div. 683, cited with approval by the court in Edison Electric Light Co. v. United States Electric, etc., Co., supra, the question was whether certain written communications which had passed between the solicitor of the defendants and their surveyor, and between the surveyor and the solicitor were privileged. The English court held that they were not privileged, unless they were prepared after the dispute has arisen between the plaintiffs and the defendants and were made for the purpose of obtaining information, evidence or legal advice with reference to litigation existing or contemplated between the parties.
The record demanded, whose production is resisted, shows, in the words of defendant's counsel, the ‘motorman's conduct and discipline, if any, from the time he entered the service of the City of Cleveland and its predecessor, The Cleveland Railway Company, up to the time of the altercation.’ This record was not made after the dispute arose or at a time when litigation either existed or was contemplated between the parties to the present law suit. Other possible lawsuits on previous occasions could not possibly affect the question of privilege in the present case.
Although the defendant's brief concedes agency, the pleadings raise the issue of agency as well as the issue of the knowledge of the defendant of its motorman's ‘vicious propensities.’ As was said in Re Klemann supra: ‘Proof of agency is the necessary link in the chain of evidence connecting the Avondale Motor Car Company with the casualty, and it is for the purpose of finding this necessary link that production of the books and records is sought. Entries therein are competent as admissions against interest and are both material and relevant to the question of agency. Refusal to produce these books and records was unlawful.’
Defendant also claims that the record demanded is ‘a private, privileged record between the men and their employer.’ Sec. 11494, G.C., however, does not accord the employer or the employee any such privilege as to such a record. It has been held that since the statute enunciating the rule is a statute of exclusion of testimony, the provisions thereof should be strictly construed. Collins v. Collins, 110 Ohio St. 105, 143 N.E. 561, 38 A.L.R. 230.
In addition to the foregoing, we must bear in mind that Sec. 11552, G.C., states that the right of inspection extends to any ‘book, paper, or document * * * containing evidence relating to the merits of the action or defense.’ The spirit of this statute was well stated by Judge Hart in Re Bott, 146 Ohio St. 511, 66 N.E.2d 918, 920, as follows: ‘One observation may be appropriately made to the effect that in order that truth may prevail and wrong may not be shielded, courts should be slow to suppress evidence which perchance may turn out to be competent and relevant and to reveal the truth.’
We have examined the journal entry in the case of In re Hyde recently decided by the 8th District Court of Appeals in the hope that it might shed some light upon the subject of this opinion. It does not, however, seem to apply here. The reason given by the majority is more in the nature of a justification of procedure than matter of a substantive law. The dissenting opinion is more in point. The court did not decide insofar as the reference to the syllabi of the Schoepf and Martin cases are concerned what is a privileged communication, but rather that habeas corpus is the proper remedy in the case.
The refusal on the part of the witness to produce the disciplinary or conduct record of William C. Brown, is, therefore, unlawful and he is ordered to produce the same in accordance with the subpoena duces tecum.