Opinion
January 1, 1940.
1. — Judgment. Where default judgment is rendered in tort action, and the damages are unliquidated, the court may take as true the allegations of the petition, but there is no admission of the damages claimed, and the damages must be proved.
2. — Discovery. In action by dishwasher employed at lunch counter of department store against manufacturer of washing compound for injury to hands from use of compound, dishwasher was entitled to know by answer to interrogatories the ingredients and proportions used in compound so that the information could be submitted to experts for opinion, notwithstanding that answer would allegedly divulge trade secret.
3. — Discovery. Whether manufacturer being sued for injury from use of dishwashing compound should have been compelled to reveal proportionate parts of ingredients in compound, on penalty of judgment by default as provided by statute, was in sound discretion of trial court, and requiring manufacturer to answer interrogatory was not abuse of discretion.
4. — Damages. $2,000 in damages for infection of hands and wrists from use of dishwashing compound, requiring medical expenditures of $127.00 and resulting in inability to work for about nine months was not excessive.
Appeal from the Circuit Court of Greene County. — Hon. Hiram McLaughlin, Judge.
AFFIRMED.
Allen Woolsey, Clarence O. Woolsey, Gatch, Kleinmann, Roberts Kuhn and Frank A. Roberts for appellant.
The Court erred in entering a default judgment against the defendant. A. By requiring the defendant to reveal a trade secret (formula) in response to plaintiff's interrogatory No. 2 of Group One before the plaintiff had made a prima facie case of use of the defendant's product. Lenerts et al. v. Rapidol Dist. Corp. 3 Fed. Rules, Decisions, 42. B. By refusing the defendant's offer to reveal to the Court in confidence its trade secret (formula) to be revealed by the Court to the plaintiff when and if a prima facie case of use of the defendant's product was made by the plaintiff. Wiggins Chemical Co. v. Berry et al. 46 Fed. (2) 622; 26 Ill. Law Review, page 564. The judgment was excessive. Miller Fairman, Wm. P. Sanford and M.J. McQueen for respondent.
The Trial Court did not err in requiring Defendant (Appellant) in response to Plaintiff's (Respondent's Interrogatory No. 2 of Group One, to list ingredients and proportions thereof in Defendant's "Dishwashing Compound No. 2", and, upon Defendant's refusal to do so, in entering default judgment against Defendant for the following reason: (A) Information concerning ingredients and proportions for which was asked in the Interrogatory in question did not constitute a trade secret. Lennerts et al. v. Rapidol Distributing Corp., 3 F.R.D. 42: In action for personal injuries resulting from use of hair dye, Plaintiff filed Interrogatory inquiring of Defendant-Manufacturer the ingredients composing hair dye, and Court in ruling upon Defendant's objection to this Interrogatory, stated as follows: "The Interrogatories propounded are disposed of as follows: With respect to Defendant's formula, it is improper to require Defendant to reveal a secret formula or trade secret in a case of this nature. However to compel Defendant to reveal the ingredients of its product is not to force the revelation of secret processes, concealed methods of compounding and the like. (Emphasis ours). The latter would be protected under Federal Rule 30 (b) of the Federal Rules of Civil Procedure; the former not. Therefore the Defendant is directed to tell the Plaintiff merely the ingredients of the product." (B) Even if information concerning ingredients and proportions thereof in Defendant's "Dishwashing Compound No. 2" did constitute a trade secret (which Plaintiff-Respondent denies), the Trial Court may require the divulgence of same where such information is material to the issues and necessary to justice. Du Bois v. Thomas 154 Miss. 286, 122 So. 495: Suit on contract, under which Plaintiff agreed to contribute to a business venture a secret formula, the matter of the formula being in issue in the trial, Plaintiff, while giving testimony on the stand, was asked to divulge the information concerning the formula, but refused to do so, and was upheld in so doing by the Trial Court. The Appellate Court, in reversing the Trial Court upon this matter, ruled as follows: "The evidence here sought to be elicited from the witness was relevant and material to the issue being tried, and might have disclosed that the formula was inefficacious. The witness, therefore, should have answered the question, unless he had the privilege of refusing so to do. A witness has a qualified but not an absolute privilege of refusing to disclose trade secrets when the disclosure thereof would depreciate the value. He should not be compelled to disclose such secrets where so to do is not essential to the ends of justice; but where a trade secret is relevant to an issue being tried, and its disclosure is essential in order that an issue may be correctly determined and justice administered accordingly, a witness is not privileged to refuse to disclose it. Wilson v. Supreme Court of California 66, Cal.App. 275, 225 P. 881: This was an action for injuries due to the explosion of a flare, manufactured under secret process. The Defendant-Manufacturer was called by Plaintiff as a witness and asked the chemical composition of the flare, which inquiry he refused to answer, and for which refusal he was held in contempt. He then appealed, claiming that this was privileged information, and on appeal the Appellate Court, after ruling that there was no absolute privilege to decline to reveal a trade secret, and that in the instant case chemical composition of the flares might be vital to the case of the Plaintiff, went on to state as follows: "While it may be of great pecuniary importance to the owner of a trade secret, because of revenue or profit derived by him from the manufacture and the sale of the product dependent thereon, that the formula remain undisclosed, it may also well be of greater comparative consequence to one injured by or through its use, that the secret be divulged in order that the rights of the injured party may adequately be protected." Stuckes v. National Candy Co., 158 Mo. App. 342, 138 S.W. 352: This was a suit for royalties, Plaintiff claiming that Defendant had used a trade secret belonging to Plaintiff and wrongfully manufactured candy using same. At the trial Plaintiff asked Defendant for the formula, and the Trial Court refused to compel him to divulge the formula. The Appellate Court, in overruling the Trial Court upon this particular point, ruled as follows: ". . . It is no less true that in an action at law Defendant is not protected in the perpetration of a wrong, nor suffered to reap the benefit of it, by the claim that to disclose the truth would subject him to a loss. The claim of damage to result from disclosure of a trade secret is not to prevail as a means to cover up fraud . . ." Nakkin Patents Corp. v. Robinwitz 1 F.R.D. 90, 70 Corpus Juris, page 743. And where information contained in a trade secret is relevant, necessary, and material to the case, the question of whether or not such information must be divulged, rests with the sound discretion of the Trial Court for its determination; and such discretion will not be disturbed except in the case of an abuse of such discretion. Newell v. Phillips Petroleum Co. et al. 144 F. (2) 338; Upon Defendant's refusal to answer Interrogatory, and after being ordered by the Court to do so, Plaintiff, upon proper motion and at the discretion of the Court, is entitled to a default judgment against Defendant. M.R.S.A. 1939, Sec. 847.85 (d). 847.89 Compelling answer to interrogatories, requests, etc. If a party or an officer, or general manager of a corporation wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice or fails to return answers to interrogatories submitted under Section 85, after proper service of such interrogatories, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party. (Emphasis ours) See also: Cohn v. Anmunziata 27 F. Supp. 805; 6 Cyclopedia of Federal Procedure (2nd Ed.) Sec. 2949. By waiting more than ten days after Interrogatories had been served upon Defendant to make objection that Plaintiff was not entitled to information concerning ingredients of washing compound, for reason that it was a trade secret; by making numerous objections to Plaintiff's Interrogatories in proper time but failing to make any objection to interrogatory concerning ingredients concerning washing compound; by making answer to Plaintiff's Interrogatory concerning the ingredients of washing compound, before raising objection to such Interrogatories, Defendant thereby failed to make timely objection to such Interrogatory and waived any right it might have to object to same. M.R.S.A. 1939, Section 947.85. Any party may serve upon any adverse party written Interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer, director, partner or managing agent thereof competent to testify in its behalf. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answer on the party submitting the interrogatories within 15 days after the delivery of the interrogatories unless the Court, on motion and notice and for good cause shown, enlarges or shortens the time. Objections to any interrogatories may be presented to the court within 10 days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. * * *" Carey v. Hardy et al., 1 F.R.D. 355. In this case Plaintiff served certain interrogatories on Defendant on November 10, 1939. Defendant did not file objection to same until April 5, 1940. There the Court ruled that Defendant's objection came too late, under Federal Rule 33 of Federal Rules of Civil Procedure, which rule is similar to M.R.S.A. 1939, Section 847.85, stating in their opinion as follows: "The objection came too late. The rule under which the interrogatories were filed provides that the objections to the form or substance of any interrogatories may be presented to the Court within 10 days after the service of same. "It would seem that the rule makers had in mind that the interrogatories would be looked over, without answering any, and objections immediately made to those that were objectionable to the party, although there would be no question if a portion of the interrogatories were answered, some objected to and answers withheld, if done within 10 days * * * "The objections to the interrogatories came too late and the Defendant will be required to answer all the interrogatories propounded." Dann v. Compagnie Generale Trans-Atlantique Ltd. 29 F. Supp. 330. Plaintiff failed to answer interrogatories served upon by Defendant, and made no objections or exception to same. The Court, in ruling that Plaintiff must go ahead and answer same, stated: "The failure of the Plaintiff to except leaves him in a position where nothing is left for him to do but answer; in any event the interrogatories seem to be proper, and they have not been answered. * * * Under that rule the Court may exercise discretion, which I do by requiring the Plaintiff to answer the interrogatories." Munzer v. Swedish American Line et al. 35 F. Supp. 493, l.c. 497. Here Plaintiff made no objection to interrogatories served upon her concerning certain medical information which was privileged, but went ahead and answered same. Later she was served with a subpoena duces tecum which required her to produce certain records pertaining to her medical history. The Court in ruling as to whether or not she should produce the medical records required by the subpoena duces tecum, ruled as follows: "Plaintiff made no objection to any of the interrogatories. Her answers to the interrogatories were voluntary. Under Rule 33 (comparable to our Rule 85) she could have presented her objection to the Court within 10 days after service of the interrogatories and raised the issue of `privilege' by such objection. It has been generally recognized that `privilege' as an objection applies to interrogatories under Rule 33, just as it may be the basis of an objection to questions on the examination of a party whose deposition is being taken under Rule 36. * * * I think that here the Plaintiff has waived her privilege so far as it relates to communication with physicians concerning her mental condition." 6 Cyclopedia of Federal Procedure (2nd Ed.) 2759 — Time for Filing. "It is provided that the party served with interrogatories may, within 10 days after service thereof, present to Court his objection to any interrogatories, with notice as in case of motion. Presumably, if objections are not accordingly duly filed, they are waived and answer must be made." 35 Corpus Juris Secundum, page 1106. Speaking of necessity to make objection to interrogatories, it is stated: "In the absence of an application for an appropriate protective order under Rule 31 (d), an objection to the form or substance of an interrogatory made more than 10 days after the service of same is too late. On failure to object to any interrogatories within 10 days after service thereof, there is nothing for a party to do but to answer or suffer the penalties imposed by Rule 37." The judgment was not excessive. Manual v. American Car Foundry Co., (Mo. App.) 23 SW (2) 1073: In this case there was a verdict of $2,000.00, where Plaintiff suffered a fractured fibula, was prevented from working for about two months, lost salary during such period at approximately $25.00 per week, and incurred a doctor bill of approximately $100.00; verdict held not excessive. Beck v. Galloway Peas Lumber Co., 210 Mo. App. 341, 239 S.W. 166. In this case a judgment for $2000.00 was upheld by the Springfield Court of Appeals in the year 1922, Judge Cox writing the opinion, the Plaintiff having suffered a simple fracture of the ulna (arm), having been under treatment six or seven weeks, the medical testimony showing that the fracture had healed perfectly and that there was no permanent disability, though the Plaintiff still complained of some pain. Here Plaintiff was making wages of $3.00 per day. Judge Cox in rendering this opinion, speaking of physical and mental suffering, stated as follows: "It is sometimes difficult for an Appellate Court to determine just what influences a jury in fixing the amount of damages in cases of this kind, where compensation is allowed for physical pain and mental anguish. There is no standard by which compensation for physical or mental suffering can be measured. This must of necessity be left to the discretion of the jury, and the amount fixed by them will not ordinarily be interfered with unless the amount is so great as to appear unreasonable, or there are some circumstances connected with the case that will indicate that the Jury may have been induced in some improper way to increase the amount above what would appear to be reasonable, under the circumstances. We are not convinced that the amount of damage assessed in this case is sufficient to justify a reversal on that ground."
This is an appeal from a default judgment. On the 5th day of December, 1944, plaintiff filed a petition in the circuit court of Greene County, Missouri, in the first count alleging that about November 1, 1942, she was employed by Heer's, Inc., in their department store at Springfield, Missouri. She worked at a lunch counter, and part of her duties was to wash dishes and glasses. That Heer's, Inc., purchased a washing compound known as "Dishwashing Compound No. 2" from the defendant, and that defendant knew or should have known that said compound would be used by the employees of Heer's Inc., for dishwashing purposes. That the plaintiff, as one of such employees, did so use said compound for about three weeks after November 1, 1942 and that said powder injured her hands until she was no longer able to work. That the powder was not such as was represented and warranted by the defendant. Plaintiff prayed judgment for the sum of $3,000.00.
In Count 2, plaintiff alleged that her injury was caused by the negligence of the defendant and that,
"* * * the said Defendant, on and prior to the first day of November, 1942, carelessly and negligently caused and permitted said compound to be manufactured so that it contained certain injurious elements, the exact nature of which are unknown to Plaintiff, so that when such compound was sold by Defendant to Heer's Inc., as aforesaid, and used by Plaintiff in the normal and usual way that such washing compound would be used, Plaintiff was injured as hereinafter set out."
She asked for $3,000.00 damages on Count 2.
Defendant filed an answer specifically denying all the allegations of the petition except to admit its incorporation and that it was engaged in the manufacture of soaps and washing compound, including a washing compound known as "Dish Washing Compound No. 2".
On the 30th day of March, 1948, plaintiff filed certain interrogatories, the principal one in controversy here being:
"2. Enumerate and list the ingredients, organic and inorganic, and proportions used thereof, in the soap, washing compound, or detergent, known as `Dishwashing Compound No. 2', as manufactured and sold by the DuBois Company in 1941 and 1942."
Objection was made to the interrogatories and was overruled as to the one above set forth. An answer to the interrogatories was then filed which listed nine classes of detergents as printed in Public Health Reports, Vol. 59, No. 34 of August 25, 1944, pages 1103-1117, which was also issued by the U.S. Public Health Service as Reprint No. 2574, but it does not state whether all or only part of those listed were used, except it did exclude sodium hydroxide (lye) neither did defendant state the proportions of the ingredients used in the preparation of the compound except it stated that it also used less than 1/25 of 1% of a common fluoresceine type soap dye.
On the 3rd day of May, 1948, plaintiff filed a motion to compel further answers to the above quoted interrogatory, which motion was sustained. The defendant then filed a motion praying the court to reconsider its order, which motion was as follows:
"As grounds for this Motion the defendant respectfully draws the Court's attention to the fact that the deposition of the plaintiff in this case has been taken and is on file in the office of the Circuit Clerk of Greene County, and that the evidence of the plaintiff so given does not show that the product above mentioned, manufactured by this defendant, was used by the plaintiff or that the injury she complained of resulted from the use of said compound.
"Defendant further states that the compliance with the order of May 29th requires this defendant to divulge a highly valuable trade secret with resultant irreparable damage to this defendant.
"Wherefore, defendant prays the Court to re-consider its order and to either withdraw same or to postpone or suspend the enforcement of such order until the plaintiff has made a prima facie case as to the use by the plaintiff of the defendant's compound as set out in her petition."
This motion to reconsider was overruled on the 12th day of June, 1948, and the defendant was given additional time to answer the interrogatories.
On the 3rd day of July, 1948, defendant filed an affidavit of its Secretary and Treasurer, which contained the following language:
"Affiant states that the defendant, at the present time and for several years last past, has been engaged in the manufacture and sale of a product known as Dishwashing Compound No. 2; that the formula of ingredients and proportions used in the manufacture of said compound now and in the past has been preserved and kept secret in order to avoid its exploitation by competitors of the defendant.
"The said Dishwashing Compound No. 2 has been widely sold throughout the United States of America and said product has not proved injurious to any person or persons who have used it throughout the years.
"Said Dishwashing Compound No. 2 is not injurious to the skin.
"The evidence contained in a deposition of the plaintiff, taken by the defendant and now filed in this cause establishes without question that whatever affliction, if any, was suffered by the plaintiff, did not result directly or indirectly from her use of the defendant's product.
"Affiant understands that the court in this cause has ordered the defendant specifically to answer the questions above enumerated. Affiant states that a compliance with such order will cause unnecessary and irreparable injury to this defendant, in that the latter will be required to divulge a highly valuable trade secret the property of the defendant, in an action in which said defendant's product was not used by the plaintiff.
"WHEREFORE, affiant prays the court to reconsider the former order and grant one or two of the following alternatives:
1. Withdraw the order requiring a more specific answer to the above question, than has heretofore been given.
2. Postpone or suspend the enforcement of such order until the plaintiff has made out a prima facie case as to all other issues alleged in the petition."
This affidavit was stricken from the files as showing a wilful disregard of the court's order. Plaintiff then filed a motion for a default judgment pursuant to Section 847.89 of the 1939 Missouri Revised Statutes Annotated. That section provides (among other things) that if a party to a cause refuses to answer interrogatories the court may "enter a default judgment against that party." When this hearing was had, the following transpired:
"MR. WOOLSEY: The defendant requests that the record show that on the 19th day of June, when both parties were present before the Court, the defendant further requested that it be allowed to divulge the formula in question to the Court personally, to be held by the Court in confidence until such time as the plaintiff had made a prima facie case against the defendant, at which time, if a prima facie case was made, the formula was to be disclosed to the plaintiff and her attorneys, and that said request was overruled by the Court.
"THE COURT: Said offer was made in open Court with the attorneys for both sides present, and the offer was rejected by the Court at the suggestion of the plaintiff's attorney.
"MR. WOOLSEY: The defendant further requests the Court to make the deposition — the deposition of the plaintiff now on file with the official records of the Court in regard to this case with the Circuit Clerk of Greene County, Missouri — for the reason that the plaintiff's deposition does not make a prima facie case against the defendant, it is requested that this deposition be allowed and made a part of the record at this time, in order to show that the defendant's request for a reconsideration of the original order concerning the interrogatories answered was made in good faith and is based on sworn testimony of the plaintiff, under oath, taken with opportunity for cross examination by her counsel.
"MR. SANFORD: We object to that being introduced into evidence for the reason that no evidence of any sort has been offered in this case, except that pertaining to the jurisdiction of the parties; that trial has not been had, but this is a judgment on the pleadings; that defendant, in its own answers to the interrogatories that it did answer, admitted sale of this merchandise to the company for which the plaintiff was working, sale having been made approximately about the time that the matters occurred that are alleged in plaintiff's petition."
Answers to other interrogatories admitted defendant had made the following shipments of the washing compound to Heer's Inc., (plaintiff's employer)
"February, 1941, 5 cases, 325 pounds.
September, 1941, 4 cases, 260 pounds.
November, 1941, 8 cases, 560 pounds. * * *
"MR. WOOLSEY: Are you through?
"MR. SANFORD: Yes, sir.
"MR. WOOLSEY: With the Court's permission, I would like to further add that this request that the deposition be made a part of the record results from the indication on the part of the Court that the motion for default judgment will be sustained, and that in order for an appellate court to have all relevant and material facts upon this question, which appears to be one of first impression in Missouri; that the deposition should be on hand for the appellate court's perusal in connection with the question of whether or not the prima facie case is made, and whether or not a defendant should be required, under the law, to divulge a secret formula until such prima facie case is made.
"THE COURT: Plaintiff's objection will be overruled, and the deposition will be considered as in the record for purposes of appeal."
The court then heard testimony of the plaintiff and her husband as to the amount of the damages. An agreement was also had and it was stipulated between the parties what the evidence of Dr. Garrett Hogg, Dr. L.F. Heimburger and Dr. T.E. Ferrell, who had examined plaintiff would be if they were present and testified and it was stipulated that there was no testimony by these doctors on the question of the cause of the condition of plaintiff's hands. At the close of the testimony as to the damages, the court rendered a default judgment against the defendant in the sum of $2,000.00. That judgment is:
"Now on this 24th day of July, 1948, this matter coming on to be further heard on Plaintiff's Motion for Default Judgment, and the Plaintiff appearing in person and by her attorneys of record herein, and the defendant appearing herein by its attorneys of record.
"The Court hears the Motion and finding that said Motion was heretofore first presented and argued on the 12th day of July, 1948, at which time the hearing was adjourned to this date; and finding that said Motion is well taken and that Defendant has refused and neglected to answer Plaintiff's interrogatory propounded to it, which reads as follows, to-wit:
`Enumerate and list the ingredients, organic and inorganic, and proportions used thereof, in the soap, washing compound, or detergent, known as "Dishwashing Compound No. 2", as manufactured and sold by the DuBois Company in 1941 and 1942."
"And finding that the Defendant and its officer and agent has failed and refused to answer said interrogatory though heretofore ordered by the Court to do so, and that Plaintiff's Motion for Default Judgment is meet and proper and should be sustained, same is ordered and sustained.
"Whereupon both parties hereto, Plaintiff and Defendant, introduced evidence as to the nature, character, and extent of Plaintiff's injuries and damage, and the Court being fully advised in the premises finds that Plaintiff was injured and damaged to the extent of Two Thousand and No/100 Dollars ($2,000.00).
"Wherefore, it is ordered, adjudged, and decreed that Plaintiff have and recover of and from the Defendant the sum of Two Thousand and No/100 Dollars ($2,000.00), together with her costs herein laid out and expended, for which execution may issue."
On August 2, 1948, defendant filed a motion to set this judgment aside and grant a new trial, which was by the court overruled.
When a default judgment is rendered in a tort action, and where the damages are unliquidated, the court may take as true the allegations of the petition. (Fawkes v. National Refining Co. 341 Mo. 630, 108 S.W.2d 7. Electrolytic Chlorine Co. v. Wallace Tierman Co. 41 S.W.2d 1049, 328 Mo. 782. 78 A.L.R. 930. Evans v. Dockins, 40 S.W.2d 508. Oliver v. Scott, 208 S.W.2d 468) but there is no admission of the damages claimed. That must be proved. Lewis v. Lewis, 207 S.W.2d 524.
Appellant contends that the plaintiff's deposition taken on the 9th day of March, 1948, and the stipulation as to the testimony of the physicians does not make a prima facie case of liability against the defendant and that it ought not be required to divulge the proportions of the mixture until a prima facie case is made. It is true that the deposition of plaintiff and the admitted testimony of the physicians relate principally to the injuries suffered by plaintiff. There is no proof therein of a causal connection between the injury and the product sold by the defendant to plaintiff's employer. But we cannot assume that that would have been all the evidence that plaintiff would produce on a trial. The defendant admitted certain shipments of the washing compound to Heer's Inc., near the time plaintiff was employed there. The plaintiff testified that the washing compound she used, and to the use of which she attributed her injury, was procured by employees of the lunch counter at which she worked, from the Tea Room operated in another part of her employer's department store. It would seem logical to assume that proof could be obtained that the washing power delivered to Heer's Inc., was used in the Tea Room and part of it taken down to the lunch counter for use there, if such were the facts. The plaintiff's testimony shows that her hands and wrists became infected over the same surface that came in contact with the water containing the washing compound a short time after she began using it. She continued to wash the dishes in the water in which the compound had been used and her infection became progressively worse. Other than the inference to be drawn from these circumstances, she does not know what caused her trouble. It seems to us, therefore, that she would not only be entitled to know what chemicals were included in the compound but also the proportionate part of each chemical, if for no other reason, so these facts could be submitted with the others in a hypothetical question to experts for their opinion as to whether the chemicals so compounded caused the results that followed. It is as important for her to know the different amounts of the chemicals and substances used as to know what tht chemicals were that were compounded, insomuch as she has none of the compound for chemical analysis. To keep from her this information would prevent her from making a prima facie case and it would do no good to divulge it secretly to the judge or to the plaintiff after the trial had proceeded and she had failed to prove a causal connection between her injury and the washing compound that she claims caused it.
We know of no law that prevents a court from compelling the divulging of a trade secret under circumstances where it is as material as here in ascertaining the facts.
Professor Wigmore reviews this question (Wigmore on Evidence, Vol. VIII, Sec. 2212, Page 157) and says in discussing the withholding of such information:
"* * * in such cases, it might amount practically to a legal sanction of the wrong if the Court conceded to the alleged wrongdoer the privilege of keeping his doings secret from judicial investigation. No privilege at all should there be conceded, although as much privacy as possible might be preserved by compelling disclosure no farther than to the judge himself, or to his delegated master or auditor, if (as is usual) the cause is tried by chancery procedure. Finally, even where the claimant of the privilege is not a party charged with fraud, no privilege of secrecy should be recognized if the rights of possibly innocent persons depend essentially or chiefly, for their ascertainment, upon the disclosure in question.
"* * * What the state of the law actually is would be difficult to formulate precisely. It is clear that no absolute privilege for trade secrets is recognized."
In Coca-Cola Co. v. Joseph D. Wirthman Drug Co. (8th Cir.) 48 Fed. (2) 743, in discussing the right to withhold such information, Judge Stone, speaking for the court said:
"Except where there is some announced reason of public policy — such as incrimination or privileged communication — the rules of evidence have never bent to permit a party to a suit to refrain from divulging facts pertinent to the issues before the court simply because he might be injured by such facts becoming public. In saying this, we do not wish to be understood as meaning that under any and all circumstances, where secret trade formulas or trade secrets might have a bearing upon issues before a court, they must be revealed. As far as is consistent with fair administration of justice, such secrets should be protected. But where such hold the essential facts of a controversy and no equally good evidence is obtainable, we see no reason why they should not be required."
The interesting discussion in Lever Bros. Co. v. Proctor Gamble, 38 F. Supp. 680 is not inconsistent with our conclusions in this case. See also Charles of the Ritz Dist. Corp. v. Federal Trade Com. 143 Fed. (2) 676.
The appellant, in its brief, cites Lenerts et al. v. Rapidol Dist. Corp. 3 Fed. Rules Decisions 42, Wiggins Chemical Co. v. Berry 46 Fed. (2) 622 and an article by Professor Wigmore in 26 Illinois Law Review, p. 564.
The Lenerts case was by the District Court of the Northern Division of New York. In that case, the court held that it was improper to require the defendant to reveal a secret formula or a trade secret but could be compelled to reveal the ingredients of the product. It based its decision on Rule 30 (b) of the Federal Rules of Civil Procedure. That section, among other things, permits the court in which an action is pending, after a notice to take a deposition by oral examination, to make an order that it may be taken only on written interrogatories and that secret processes, developments or research need not be disclosed.
We have no such provision in our statutes and if we did, the mere divulging of the ingredients of a compound and the proportionate part of each compounded would not, in our opinion, be divulging a secret process.
The case of Wiggins Chemical Company merely states that in the trial the appellant refused to make its formula public by introducing it into the record but it did submit the formula to the District Court for its confidential examination and inspection. However, this was an equity case and under its facts, this procedure could have been safely followed. The District Court found against the appellant, on the facts that the formula did not appear in the record and the Court of Appeals held that under this state of facts, they could not say that the trial court erred in its finding.
The article by Judge Wigmore in 26 Illinois Law Review is based upon the Coca-Cola case, supra, which was an equity case tried by the court alone and was decided against the Coca-Cola Company, because they would not divulge the proportionate mixture of the ingredients of Coca-Cola. They did divulge the ingredients. Judge Wigmore suggested that they could have divulged proportionate parts of the mixture in confidence to the court and he in turn submitted it confidentially to the Court of Appeals and the case could have been decided without publicizing the proportion of the mixture. They did not do this, the District Court held against them and it was affirmed by the Court of Appeals.
We think whether appellant should have been compelled to reveal the proportionate parts of the ingredients in its soap powder, was a matter within the sound discretion of the learned trial court and we are not justified from the facts here in holding that he abused it.
Defendant also contends the damages allowed by the court are excessive. Plaintiff's testimony shows that after several weeks of using the washing power, her hands and wrists became so infected that she was compelled to quit working and seek medical assistance. To one doctor she paid $7.00, to another she paid $70.00 at $2.00 per trip and to a third doctor $50.00 for X-Ray treatments in trying to get relief from her infection. She went regularly to doctors for about two months. For nine months she was unable to work except for approximately two weeks. Her fingers had to be wrapped individually and over that her hands were bandaged so it was impossible for her to do any work, including her housework. She testified that her hands were aching and itching constantly and made her nervous. Some effects of the infection (discoloration) were noticeable at the trial though she had recovered the use of her hands. Her weekly salary, while working at Heer's was $14.00. Considering all these facts, we cannot say as a matter of law that the amount of damages allowed by the court was so unreasonable as to require a reversal. The judgment of the trial court should be affirmed. It is so ordered. Blair, J. concurs in separate opinion. McDowell, J. concurs.
SEPARATE CONCURRING OPINION.
I concur fully in the holding of the main opinion, that the damages assessed were not excessive.
I am unable to see where appellant was justified, under Section 85 of the Laws of Missouri for 1943, page 379, in refusing to answer in open court the interrogatories of respondent as to the proportions, as well as the ingredients, used by it in its "Dish Washing Compound No. 2."
Respondent made a prima facie case against appellant by her testimony that the injuries sustained by her could not likely have been due to some other cause than her constant use in her work of appellant's "Dish Washing Compound No. 2," and it seems to me that it was then up to appellant to show (if it could) that such injuries were due to some other cause.
The default judgment was justified by subsection (d) of Section 89 of the Laws of Missouri for 1943, at page 382.
It is rather a severe proceeding to compel appellant to reveal to the World and to its competitors, not only the ingredients used by it in its Dish Washing Compound No. 2, but also the proportions of such ingredients; but such is apparently the plain meaning of Section 85, Laws of Missouri, 1943, page 379, and it is the duty of this Court to enforce the law, as laid down by the Legislature, even though such law may seem harsh to us.
Under such circumstances, it is my duty to concur.