Summary
In State ex rel. Uregas Service Co., Inc. v. Adams, Banc, 364 Mo. 389, 262 S.W.2d 9, involving the explosion of a gas water heater, this court granted prohibition precluding answers to two questions asking whether defendant took any pictures of the heater, and, if so, how many and what photographer took them.
Summary of this case from State v. McMillianOpinion
No. 43865.
November 9, 1953.
Prohibition against a circuit judge to prevent enforcement of an order to compel answers to interrogatories. A corporation is required to give the information acquired by any of its officers, agents, employees or attorneys. The identity of agents or attorneys of defendant's insurance company who inspected gas appliances involved in an explosion was not privileged. Photographs made in preparation for anticipated litigation were privileged. The rule in prohibition is made absolute with reference to questions relating to such photographs, but is otherwise discharged.
1. DISCOVERY: Corporations: Answers to Interrogatories: Knowledge of Corporation Required. In answering interrogatories a corporation must give any information not privileged which has been obtained by any of its officers, agents or employees, including its attorneys, and it is immaterial that the officer making the answers does not know of his own knowledge the facts required to be stated.
2. DISCOVERY: Evidence: Insurance: Inspection by Attorneys or Agents of Insurance Company: Identity Not Privileged. The identity of attorneys or other agents of defendant's insurance company who inspected gas appliances involved in an explosion was not privileged and relator was properly required to answer such questions in the interrogatories.
3. DISCOVERY: Evidence: Interrogatories: Photographs Privileged. Photographs taken preparatory to or in anticipation of litigation were privileged and relator should not be required to answer two questions relating to such photographs.
4. PROHIBITION: Discovery: Rule Partially Discharged. The rule in prohibition is made absolute as to questions 11 and 12 but in all other respects is discharged.
RULE MADE ABSOLUTE IN PART AND OTHERWISE DISCHARGED.
William Waye, Jr., Norris H. Allen and W.R. Gilbert for relator-plaintiff; Anderson, Gilbert, Wolfort, Allen Bierman of counsel.
(1) The information sought to be elicited was privileged and the relator could not be compelled to disclose this information. State ex rel. Terminal Railroad Assn. v. Flynn. 257 S.W.2d 69; State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473; State ex rel. v. Harris, 355 Mo. 176, 195 S.W. 645; State ex rel. v. Buzard, 354 Mo. 719, 190 S.W.2d 907. (2) The failure to bring up the entire record is not a valid objection where it appears from the pleadings that the record is immaterial. (3) The answer by the managing agent fully complied with the request of the attorneys for plaintiff for answer by the managing agent.
Sam Nowlin, William H. Becker and Scott O. Wright for respondent; Clark Becker of counsel.
(1) Since there is no denial of the averments of the return to the preliminary rule, the averments of fact contained in the return are admitted. State ex rel. Hannidan v. Kirkwood, 342 Mo. 242, 114 S.W.2d 1026; State ex rel. Iron Fireman's Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920. (2) The relator has failed to bring up the full record upon which the respondent acted, and consequently the preliminary rule in prohibition should be discharged. State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383; State ex rel. Fenn v. McQuillin, 256 Mo. 693, 165 S.W. 713. (3) The sole claim of the relator is that "the information sought to be elicited was privileged." Any claim of privilege which existed was waived by the relator in undertaking to answer the interrogatories to which objection was overruled. State ex rel. Helm v. Duncan, 225 Mo. App. 393, 36 S.W.2d 679; State ex rel. Powers v. Rassieur, 184 S.W. 116; State ex rel. Kansas City v. Burney, 324 Mo. 363, 23 S.W.2d 117; State ex rel. Templeton v. Seehorn, 208 S.W.2d 789; State ex rel. Crouse v. Mills, 231 Mo. 493, 133 S.W. 22. (4) The information sought to be elicited by Interrogatories 1, 2, 3, 11, 12, 13 and 14 was not privileged. It simply consisted of information concerning the names and addresses of persons who inspected the alleged defective heater, took photographs thereof and took samples of the gas alleged to be insufficiently odorized. The interrogatories did not request copies of the photographs nor copies of any of the reports or written statements of the parties. The names of the witnesses, known to the defendant corporation, were not privileged. A party to a lawsuit may not withhold from discovery the names of witnesses who may testify to relevant, competent and material evidence at the trial. State ex rel. Millers Mut. Fire Ins. Co. v. Caruthers, 360 Mo. 8, 226 S.W.2d 711; State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907; State ex rel. K.C. Pub. Serv. Co. v. Cowan, 356 Mo. 674, 203 S.W.2d 407; State ex rel. Terminal Railroad Assn. of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69; State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473. (5) The preliminary rule should be discharged because the relator failed to bring up the entire record. State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383; State ex rel. Fenn v. McQuillin, 256 Mo. 693, 165 S.W. 713. (6) The interrogatories were addressed to the corporation and not to the witness Dickson. Under the decisions of this court a corporation must furnish all information of which it has knowledge and may not limit its answers to the personal knowledge of the officer executing the answers on behalf of the corporation. State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907. (7) Where a liability insurer takes over complete management of the defense of an action for damages against its insured, and employs attorneys to act for and on behalf of the insured defendant, the agents and attorneys acting for the insured and paid by the insurer are servants and agents of the insured for purposes of discovery. If there were any other rule, there would be a different rule of discovery in cases where the defendant was insured and in cases where the defendant was not insured. (8) There is no privilege or confidential communications attaching information or actions which are disclosed to strangers. In this case the inspection was in the presence of and on the premises of a stranger, Teacutter, owner of the heater and residence in question. There can be no claim of privilege or confidence in respect to the names of the witnesses or the fact of the inspection. Wahl v. Cunningham, 320 Mo. 57, 6 S.W.2d 576; Canty v. Halpin, 294 Mo. 96, 242 S.W. 94; Weinstein v. Reid, 25 Mo. App. 41; Hancock v. State Highway Commission, 347 Mo. 944, 119 S.W.2d 823; 58 Am. Jur., Witnesses, sec. 492; Anno. 53 A.L.R. 369. (9) The answers given are not full and complete answers of the defendant corporation: and the order to compel full and complete answers was properly made. State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907; State ex rel. K.C. Pub. Serv. Co. v. Cowan, 356 Mo. 674, 203 S.W.2d 407.
Prohibition to prevent enforcement of order to compel answer to interrogatories in the case of Earl Richard Gregory v. Uregas Service Co., Inc., which was a suit for personal injuries sustained in a gas explosion. The principal question for decision is whether the information the Court ordered to be given is privileged.
Gregory and his landlord, from whom he rented an apartment, were attempting to determine the cause of the failure of a hot water heater to operate when an explosion occurred. The negligence charged against relator included failure to inspect before supplying gas to determine whether the heater had an automatic shut off suitable to the type of gas furnished, furnishing gas not sufficiently odorized, supplying gas when it knew or in the exercise of care should have known that the heater did not have a "100% shut off valve", negligent inspection, and negligent failure to warn. The interrogatories required to be answered by relator were as follows:
"1. Did the defendant, its attorneys, its insurer or any of them, around March 1, 1952, or at any other time, cause the hot water heater located in the basement to be inspected and tested?
"2. What persons were present at the inspection?
"3. What are the names and address of these persons?
"11. Did you take any pictures of the heater?
"12. If you did take pictures, what photographer or photographers took the pictures and how many pictures were taken?
"13. Did two men connected with the Uregas Company or the defense, in the latter part of January, or the first part of February, take some samples of liquid petroleum gas out of the tank located at the Teacutter residence?
"14. If samples were taken, by whom were they taken and what are their addresses?"
Relator's general manager answered these interrogatories by saying in substance that he had no knowledge of any of these matters and had no knowledge that relator's attorneys or insurer caused these things to be done. Plaintiff then filed a motion to require answers by relator which were not confined to the personal knowledge of the general manager. The Court made such an order and it is the enforcement of this order that relator seeks to prohibit.
Relator contends both that the information sought was privileged and that the answer by its general manager was a complete compliance with Sec. 510.020 RSMo. V.A.M.S. The latter contention is clearly wrong. We have definitely held that interrogatories to a corporate defendant are directed to the corporation and the responsibility for answering is imposed on it. State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907; State ex rel. Kansas City Public Service Co. v. Cowan, 356 Mo. 674, 203 S.W.2d 407. As we said in the latter case (203 S.W.2d, l.c. 410), an officer answering interrogatories for a corporate party "is answering for the corporation and not for himself", and it is immaterial that he does not know of his own knowledge the facts required to be stated. Of course, his personal knowledge may be called for under Rule 3.19, if that is desired. We hold that material information not privileged which the corporation has must be given when obtained by any if its officers, agents or employees, including its attorneys.
Is the information sought by these interrogatories privileged? This is not a case of seeking the disclosure of hearsay, as in such cases as State ex rel. Thompson v. Harris, 355 Mo. 176, 195 S.W.2d 645 and State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473. The corporation knew who the persons were who made the inspections, and took the samples, because it sent them out to do it. If, of course, makes no difference (as conceded at the oral argument) whether the attorneys acting for relator in doing this were directly employed by it or were employed for it by its insurer. In either event, they were acting for the corporation and by its authority. Thus the situation is the same as if the corporation had sent out its own employees to do these things. When the corporation sent out persons for these purposes, it thereby made them witnesses in the case competent to testify as to any facts or conditions they found and observed that were material to the issues. Can the corporation thus make persons witnesses and then keep their identity secret?
We think this situation falls within our rulings in State ex rel. Miller's Mutual Fire Ins. Assn. v. Caruthers, 360 Mo. 8, 226 S.W.2d 711. We there ruled that the relator insurance company (sued on a fire insurance policy) should give the names of adjusters who inspected the plaintiff's property after the fire for which recovery was sought. Relator's defense was that the fire was wilfully set. We said, in ruling that the plaintiff's first interrogatory (seeking this information) should be answered: "The adjusters, who participated in the investigation, adjustment or inspection of plaintiff's property following the fire, would certainly be competent witnesses as to the amount of the loss which was one of the important issues in the case. They may have also observed conditions on the premises tending to show the origin of the fire. Plaintiff had the right to take the depositions of these adjusters to find out what their testimony would be." So here the persons who made the inspection may have learned facts tending to show the cause of the explosion, which would be material evidence.
The plaintiff in State ex rel. Miller's Mutual Fire Ins. Assn. v. Caruthers, supra, also had a count for damages for the activities of relator's agents which she claimed slandered her. In connection with this count, plaintiff asked in another interrogatory about an investigation made by relator in another county, where she had lived, seeking to learn the purpose of the investigation, what instructions were given to the investigators and what persons were interrogated [12] by them. We said this was improper because it "called for names of persons whose connection with the case and knowledge of the facts could only have become known to its agents by hearsay." We also said it called for "thoughts, mental processes and work product" of the company's agents, all of which were improper. However, we also said: "We would have a different question if plaintiff had only asked for the names of relator's investigators or agents who made the investigation for it in Williamson County upon which she bases her claim in Count Three. This would be within our ruling on the First Interrogatory. We would also have a different question if plaintiff had asked for the name of any investigator or agent who was alleged to have interviewed a specifically designated witness, to whom it was alleged a certain statement had been made and such statement was alleged as the basis of the slander count." (See also State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920, involving a suit for damages to the plaintiff's house by a fire alleged to have been caused by a defective stoker, in which we required production of the record of an inspection made after the fire.)
We think these rulings are applicable here. The persons sent by relator to make inspections of the water heater and take samples of the gas (which could be used as evidence in the case) became immediately qualified to be witnesses, when they observed material conditions and facts; and either party may use the testimony of any witness if he desires to do so. There is no hearsay involved in identifying these witnesses. Relator (through its agents who sent them) knows who they are and had such knowledge from the time they became witnesses, just as much as in the cases, above cited, where witnesses were known by the corporation involved to have been at the scene of a collision causing personal injuries. No one would contend that a doctor, who examines a plaintiff in a personal injury suit for the defendant, is not thereby made a witness available to either party. The plaintiff certainly has the right to know who he is and what he will say. (See Sec. 510.040 RSMo. V.A.M.S.) So we think in this case plaintiff had the right to know who were the persons sent to make the inspections, and take the samples, and to take their depositions if he desires to do so; and that they are likewise witnesses available to either party for obtaining information about material facts. We see no reasonable distinction between physical examination of a person, when his condition is an issue in the case, and physical investigation of inanimate objects the condition of which are likewise issues therein. We, therefore, hold that information as to the identity of these witnesses is not privileged and that questions 1, 2, 3, 13 and 14 should be answered.
However, the situation is different as to questions 11 and 12. In State ex rel. Terminal R.R. Assn. v. Flynn, 363 Mo. 1065, 257 S.W.2d 69, we held that photographs were privileged and "outside the arena of discovery," when taken preparatory to or in anticipation of litigation. We said, like diagrams, maps and drawings, they "were the `work product' of relator in preparation of its defense." Under that ruling, to which we adhere, plaintiff was not entitled to information as to whether relator took pictures and how many it took. It is argued that plaintiff was entitled to know who the photographer was because he might have observed conditions on the premises about which he could testify independently of what was shown in any pictures he took. The question does not indicate any such purpose, or any other purpose than to obtain the pictures; and the request for the photographer's identity is combined in the same question with the improper request as to the number of pictures taken. Therefore, we do not think relator should be required to answer questions 11 and 12.
Our rule is made absolute to prohibit respondent judge from requiring answers to questions 11 and 12, and in all other respects our rule is discharged. All concur.