Opinion
No. 31169
Decided April 21, 1948.
Depositions — Action involving public transportation vehicle in accident — Reports and records in possession of company's legal department — Privileged communications and production not enforced — Names and addresses of operators and times of operation of vehicles — Relevant as evidence and not privileged — Information may be elicited by subpoena, how.
1. Reports and records concerning an accident in which a public transportation vehicle is involved, which reports and records, according to the custom of the company owning such vehicle, are turned over to and remain in the possession of the company's legal department, are privileged communications and their production cannot be enforced in the taking of depositions in an action predicated on such accident. (Paragraph three of the syllabus of Ex parte Schoepf, 74 Ohio St. 1, approved and followed.)
2. The names and addresses of the operators and the times of operation of public transportation vehicles of a company, as well as the times of their operation in reference to an accident involving one of such vehicles, which information, for general purposes, is a matter of record with the company, are not privileged and are relevant and competent as evidence in an action predicated on such accident claimed to have been caused by the negligence of the operator of such a vehicle. Such information may be elicited through a subpoena issued by a notary public, to one having control of the records of the transportation company, for the taking of his deposition in such action.
APPEAL from the Court of Appeals for Cuyahoga county.
The instant case originated in the Court of Appeals for Cuyahoga county. One Donald C. Hyde filed a petition for a writ of habeas corpus to be released from unlawful restraint by the sheriff based on a commitment issued by John Crowl, a notary public, for refusal to answer certain questions at the taking of a deposition.
There was pending in the Municipal Court of Cleveland the case of Brewer v. Cleveland Transit System, and a subpoena duces tecum was issued for Donald C. Hyde, general manager of the Cleveland Transit System, owned by the city of Cleveland, ordering him to bring with him the records of the company disclosing "all the busses (numbers, and names and addresses of drivers) from 11:30 p. m. September 25, 1944, to 12:15 a. m., going south on East 152 street."
Hyde did not appear at the taking of the deposition. However, one Lombardo was present and testified that he was one of the attorneys for the Cleveland Transit System; that the records sought were in his possession; but that he would not produce them or read from them because they were incompetent, immaterial, irrelevant and privileged. Thereupon the matter was certified to the Chief Justice of the Municipal Court of the city of Cleveland, who ordered that the witness answer the questions. The taking of the deposition was continued to a later date and on that date both Hyde and Lombardo were present. Lombardo testified that he had the subpoenaed records in his possession, but that he would not show them, and his counsel objected to all questions asked concerning them on the ground that the information contained therein is privileged and is in the hands of the legal department of the Cleveland Transit System. Hyde also was examined and testified that the desired records were in the possession of the legal department of the Cleveland Transit System; that he did not demand the return of the records; and that he felt the records are privileged records, and in his organization those things are turned over to the legal department, and as to all matters connected with a court action the records properly remain there.
Thereupon mittimuses were issued for Hyde and Lombardo, and by stipulation it was agreed that they would be considered as arrested and imprisoned by the sheriff of Cuyahoga county upon the mittimuses and would be in technical custody of the sheriff.
The Court of Appeals, by a divided court, allowed the writ of habeas corpus on the authority of paragraph three of the syllabus of Ex parte Schoepf, 74 Ohio St. 1, 77 N.E. 276, 6 L.R.A. (N.S.), 325, and paragraph seven of the syllabus of In re Martin, Jr., 141 Ohio St. 87, 47 N.E.2d 388. Judge Hurd dissented on the authority of paragraphs four and five of the syllabus of the Martin case.
The instant case, having originated in the Court of Appeals, is before this court on appeal as a matter of right.
Mr. Marzel R. Levan and Messrs. Wolf Kruchkoff, for appellant, John Crowl, notary public.
Mr. Robert J. Shoup and Mr. Richard C. Green, for appellees, Donald C. Hyde and Joseph F. Lombardo.
The question whether a witness subpoenaed to give testimony in the taking of a deposition before a notary public may refuse to answer questions, on the ground that the information sought to be elicited is incompetent, immaterial and irrelevant or that such information is privileged, has had an adventurous career through the courts.
Section 11503, General Code, provides:
"A subpoena shall be directed to a person named therein, and require him to attend at a specified time and place to testify as a witness. It also may direct the person it names, to bring with him any book, writing, or other thing under his control, which he may be compelled to produce as evidence."
This court in paragraph three of the syllabus in DeCamp v. Archibald, 50 Ohio St. 618, 35 N.E. 1056, 40 Am. St. Rep., 692, held:
"Where the question propounded involves no question of privilege on the part of the witness, it is his duty to answer, if ordered by the notary to do so. The question of its competency is a matter for the determination of the court on the trial of the action in which the evidence is taken; and if he refuses to so, when ordered, he may be committed as a contumacious witness."
Apparently the holding in DeCamp v. Archibald was modified in the syllabus of Ex parte Jennings, 60 Ohio St. 319, 54 N.E. 262, 71 Am. St. Rep., 720. That syllabus reads:
"A witness whose deposition is being taken before an officer may refuse to testify to facts not relevant to the issues in the case in which the deposition is to be read, if the disclosure of such irrelevant facts would be injurious to the business of the witness; and, if imprisoned by the officer for such refusal, he may be discharged on habeas corpus."
Judge Shauck, in the opinion in the Jennings case, distinguished the DeCamp case by saying that in that case it was clearly pointed out in the opinion that the question which the witness refused to answer was competent. It is to be noted, however, that Judge Minshall, who wrote the opinion in the DeCamp case, dissented from the syllabus in the Jennings case.
In the case of Ex parte Schoepf, 74 Ohio St. 1, 77 N.E. 276, 6 L.R.A. (N.S.), 325, we find a situation quite similar to the instant case. There a claim agent of the Cincinnati Traction Company had been subpoenaed and was asked concerning an accident on one of the cars of the traction company, as to the names of the conductor and motorman of the car; as to whether there were any other persons on the car at the time of the accident complained of, except the conductor, motorman and the woman hurt in the accident; and as to whether the claim agent knew of any other persons who witnessed the accident.
The claim agent refused to answer any of the questions upon the ground that they were immaterial, irrelevant and incompetent and because the questions called for hearsay testimony. He said also that as a result of a rule of the traction company all the records and reports called for had been forwarded by him to the company's counsel when the suit was filed concerning which the deposition was being taken.
The claim agent was committed to jail until he should answer the questions and produce the records which had been called for in the subpoena.
This court held in paragraph four of the syllabus of Ex parte Schoepf:
"While an officer before whom a deposition is being taken is empowered to punish as for contempt any person who refuses to obey an order to answer a question or to produce a document, he cannot do so unless it is so 'lawfully ordered'; and where such question or document is not pertinent to the issues tendered or made, or is not material or necessary to make out the case of the party calling for it, or is incompetent or privileged, the witness cannot lawfully be ordered to answer such question or to produce such document."
The question of the right of a witness whose deposition is being taken to refuse to answer questions propounded to him was again before this court in the case of In re Martin, Jr., 139 Ohio St. 609, 41 N.E.2d 702. In that case a deposition was taken by a commissioner appointed by a New York court in a New York discovery proceeding, and this court held that when a witness has been committed for contempt, by reason of his refusal to answer questions on the taking of his deposition, he is entitled in the hearing of habeas corpus proceedings to have decided the question of the relevancy and competency of the questions asked him.
When the Martin case (139 Ohio St.) was remanded to the Court of Appeals of Lucas county, that court held that three of the questions asked Martin on the deposition were privileged and, therefore, he need not answer them, but that the remaining questions were relevant and not privileged and he must answer them.
The case again came to this court and in In re Martin, Jr., 141 Ohio St. 87, 47 N.E.2d 388, this court held in paragraphs four, five, six and seven of the syllabus as follows:
"4. A witness who is not a party has no legal right, upon the taking of his deposition, to refuse to answer any question, upon the advice of his attorney, merely because the attorney believes that the testimony sought is irrelevant, incompetent or immaterial. (Paragraph four of the syllabus in Ex parte Schoepf, 74 Ohio St. 1; and In re Martin, Jr., 139 Ohio St. 609, overruled.)
"5. A commissioner not being invested with the ultimate authority to pass on the relevancy, competency or materiality of testimony taken upon deposition, should order the witness to answer any question where objection is based upon those grounds, subject only to the exclusion of the testimony by the court when offered upon the trial.
"6. The common-law rule that confidential comunications between client and attorney are privileged and protected from inquiry when the client is a witness as well as when the attorney is a witness is fully recognized in this state, and a client cannot be compelled to disclose communications which his attorney is not permitted to disclose.
"7. A witness whose testimony is being taken by deposition for use in another state may refuse to answer any question, the answer to which would infringe any personal privilege granted by the Constitution or statutes of this state or any rule of the common law recognized in this state, and, if committed for contempt for such refusal, has the lawful right to have the question of privilege determined by the Ohio courts, in a subsequent habeas corpus proceeding."
Four members of the court concurred in the majority opinion. One member concurred in the judgment although he dissented from paragraphs four and five of the syllabus, and two members dissented from paragraphs four and five of the syllabus and from the judgment.
In the instant case, while the same question is involved as in the cases we have discussed, it is not necessary to re-examine the law as enunciated at various times by this court. We are of the opinion that when reports concerning an accident on a public transportation system have been made in the course of business of the company operating the system, and when such reports, including the names of the witnesses and the reports of such witnesses, have been turned over to the legal department of the company, they are privileged.
It will be noted that in all the cases hereinbefore mentioned, while they diametrically differ in their conclusions as to the right of a witness in a deposition to refuse to answer questions because of their irrelevancy, incompetency and immateriality, there is a uniformity of opinion that the witness may refuse to answer upon the ground that the information sought to be elicited is privileged and may have that question tested in habeas corpus proceedings.
This court is of the opinion that the names and addresses of the operators and the times of operation of public transportation vehicles of a company, as well as the times of their operation in reference to an accident, are not only not privileged but are relevant and competent as evidence in an action growing out of an accident claimed to have been caused by the negligence of an operator of such a vehicle. If such operator were on the witness stand in the trial of such an action, it would never occur to a lawyer or a court that when the witness was asked his name and address that his answer would be irrelevant, incompetent, immaterial or privileged.
Obviously the names and addresses and the times of operation of the various operators of a transportation company would be matters of record with the company for general purposes, and the company would have such records irrespective of any accident. In the instant case, the records asked for in the depositions of Hyde and Lombardo had been turned over to the legal department as privileged records. These records could be withheld and not produced, upon the ground of privilege. However, the plaintiff in an action against a defendant transportation company, can cause a notary public to subpoena the secretary of the company or the one who has control of the records thereof and compel him in a deposition to give information as to the number of cars or busses passing a given point within a given time and the names and addresses of the operators thereof.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN and SOHNGEN, JJ., concur.