Opinion
No. 27546.
January 14, 1929. Suggestion of Error Overruled February 25, 1929.
1. DISCOVERY. Right of plaintiff in equity to bill of discovery is limited to discovery of material facts relating to plaintiff's case.
Right of a plaintiff in equity to the benefit of the defendant's oath under bill of discovery is limited to a discovery of such material facts as relate to plaintiff's case, and does not extend to discovery of manner in which defendant's case is to be established or evidence relating exclusively thereto.
2. DISCOVERY. Railroad sued for value of cotton partially destroyed by fire was not entitled to bill of discovery to ascertain value of cotton salvaged.
Where owners of cotton partially destroyed by fire in warehouse after payment by insurance companies thereafter sued the railroad on ground that its negligence contributed to the burning of the warehouse, railroad was not entitled to maintain bill of discovery for purpose of ascertaining the amount and value of cotton salvaged, in that such evidence was not required to establish an affirmative defense, but was that on which reliance must be placed in order to establish amount of damages.
APPEAL from chancery court of Lee county, HON. ALLEN COX, Chancellor.
Spaulding, MacDougal Sibley, of Atlanta, Ga., Geo. T. and Chas. S. Mitchell and Sam H. Long, for appellants.
An inspection of the bill forces the conclusion that its object is not to establish any affirmative defense for the railroad company, but to "pry into the case of its adversary to learn its strength or weakness." It is therefore a "fishing bill" and as such should be dismissed. Carpenter v. Winn, 221 U.S. 533, 55 L.Ed. 842; Buckner v. Ferguson, 44 Miss. 677; George v. Solomon, 71 Miss. 168, 14 So. 531.
The facts as to the amount, value, handling and distribution of the salvage, although material, are not needed by the railroad company in order to plead or establish any affirmative defense to the actions at law. On the contrary, the owners (plaintiffs at law) must carry the burden of proving these facts in order to recover in their actions at law, and the railroad company may compel proof of them by filing in the law court a general denial of the allegations of the several petitions. Equity will not grant to a defendant discovery as to facts that he may put in issue by mere denial, or that are not needed to plead and establish an affirmative defense. Carpenter v. Winn, 221 U.S. 533, 55 L.Ed. 842; General Film Co. v. Samplines, 146 C.C.A., 287, 232 Fed. 95; 18 C.J. 1059; Slattery v. Slattery, 145 N.Y. 966; Badger Brass Mfg. Co. v. Daly, 137 Wis. 601, 119 N.W. 328.
Carl Fox, R.C. Beckett, of St. Louis, Mo., and John R. Anderson, for appellee.
However sound the principles invoked by appellants' objections might be when applied to a proper case, they are not applicable to this case. Appellants admit by demurrer to the bill that they alleged in their declarations at law that cotton of the aggregate value of nearly seven hundred thousand dollars was in the compress at the time of the fire and was totally or practically destroyed. They admit by demurrer to the bill that the allegations of total loss or practically totally destroyed. They admit by demurrer to the bill that the allegations of total loss or practically total loss in the declarations are not true in fact, and that in fact a large part of the said cotton of great value was not burned. They admit the affirmative physical evidence that a large part of the cotton was still in existence after the fire. They admit that jointly, through their joint agent, they took possession of the physical evidence, the cotton itself, removed it from Corinth, sold it and distributed the proceeds among themselves. They admit that in so salvaging the cotton their joint agent excluded and prohibited anyone else, even the owners of uninsured cotton, from having anything to do with the salvage; that they paid the insured owners of the cotton in full for all of the cotton insured, including that which was destroyed and that which was not in fact burned, so that said owners were not interested in the salvage and had no reason to inquire whether it was properly and honestly handled, worked over, sold, and the proceeds properly accounted for, and have no knowledge of it; that the knowledge lies solely with the insurance companies and their agent and in their accounts and records; and that it was all done with design and intent to defraud the Mobile and Ohio Railroad Company by making it impossible for the Mobile and Ohio to show the amount and value of the unburned cotton.
The argument for appellants all comes to this; that the amount of damages in an action of tort is not an issue, but that the burden is on plaintiff to prove the amount, and that there is not and cannot be in any case any affirmative evidence for defendant that no actual damages were suffered, nor affirmative evidence that a part of the damages sought to be recovered were not in fact suffered. From that false premise they reached the false conclusion that any and all evidence relating to the amount of damages consists of whatever evidence plaintiff may have that damages were suffered and the extent thereof, and that the amount of the recovery is small or great depending solely on the evidence that plaintiff may be able to offer. The evidence of the plaintiffs in the actions at law will be evidence of loss of cotton. The evidence that we are seeking is evidence for the defendant that certain cotton was not lost will involve disclosure of plaintiffs' evidence that certain other cotton was lost; but if it should, that is not a defense to this bill for discovery. In 1 Pomeroy (4 Ed.), sec. 201, after stating the rule that discovery is confined to facts material to the complainant's side of the action at law, it is said: "This rule, however, must be understood with the limitation that the plaintiff may compel discovery of all facts material to his own cause of action, even though the defendant's evidence may thereby be incidentally disclosed, as, for example, where the establishment of plaintiff's title or cause of action involves the proof of fraud; and the defendant, besides discovering what the case is on which he relies, can be compelled to disclose all facts which would, by way of evidence, tend to impeach or destroy it, unless otherwise privileged, since such facts are material evidence for his adversary, but is not bound to disclose any evidence by which he intends to or may support his case, for such evidence cannot be material to the plaintiff." See, also, Griffith's Miss. Chan. Prac., sec. 430.
Argued orally by Chas. S. Mitchell, and H.H. Hargreet, for appellants, and Carl Fox, for appellee.
This is an appeal from a decree overruling the separate demurrers of the several appellants to a bill of discovery.
The bill alleges, in substance, that a warehouse in Corinth, Miss., was destroyed by fire. This warehouse contained at the time a large number of bales of cotton owned by the appellants, each of them owning a separate portion or lot thereof, and which was partially destroyed by the fire. The appellants were paid for the cotton by several insurance companies, which had issued policies of insurance thereon, and the cotton was turned over to them, and salvaged, resulting in some of it being saved.
Each of the owners of the cotton sued the appellee in the circuit court of Lee county for the value of his cotton that was in the warehouse and partially destroyed. The declarations in these actions at law allege that negligence on the part of the appellee contributed to the burning of the warehouse. The appellee has been unable to obtain evidence as to the amount of the cotton that was salvaged, and instituted this proceeding to obtain from the appellants, who are the plaintiffs in the actions at law, and the insurance companies to which the cotton was delivered by them, and for whose benefit the bill alleges the actions at law were instituted, for the purpose of obtaining a discovery from them of the amount and value of the cotton salvaged.
"The right of a plaintiff in equity to the benefit of the defendant's oath, is limited to a discovery of such material facts as relate to the `plaintiff's case,' and does not extend to a discovery of the manner in which the `defendant's case' is to be exclusively established, or to evidence which relates exclusively to his case." Wigram on Discovery, pp. 15 and 262; 1 Pom. Equity Jurisprudence (3 Ed.), section 201; 18 C.J. 1059; Griffith's Chancery Practice, section 430.
The evidence here sought to be discovered is not to enable the appellee to establish an affirmative defense in the actions at law, but is to discover the evidence on which the appellants must rely in order to establish the amount of the damages sought to be recovered by them in the actions at law. In other words, the attempt here is to obtain from the appellants, in advance of the trials at law, information as to "what manner, and by what evidence," they propose to establish the amount of the damages claimed by them.
To such information the appellee is no more entitled than it would be to information as to the manner in which, and the evidence by which, the appellants intended to prove that the burning of the warehouse was caused by the appellee's negligence.
The judgment of the court below will be reversed, the demurrers will be sustained, and the bill will be dismissed.
Reversed, and bill dismissed.