State Ex Rel. Pete Rhodes Supply Co. v. Crain

373 S.W.2d 38, 1963 Mo. LEXIS 601
CourtSupreme Court of Missouri
DecidedDecember 9, 1963
Docket50028
StatusPublished
Cited by20 cases

This text of 373 S.W.2d 38 (State Ex Rel. Pete Rhodes Supply Co. v. Crain) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Pete Rhodes Supply Co. v. Crain, 373 S.W.2d 38, 1963 Mo. LEXIS 601 (Mo. 1963).

Opinions

HOLLINGSWORTH, Judge.

This is a proceeding in mandamus. It arises out of the refusal of respondent, Judge of the Circuit Court of Christian County, to require the plaintiff in an action for damages for wrongful death pending in that court, entitled “Audrey F. Merideth, Plaintiff, v. Pete Rhodes Supply Company, a Corporation, Defendant,” to make discovery to the extent of a pretrial interrogatory propounded in writing to her by defendant [39]*39in said action, under this court’s Civil Rules 56.01 and 57.01, V.A.M.R.

The interrogatory so propounded was: “Do you or your attorneys know the names of any witnesses to this accident? If so, what are the names and addresses of the witnesses?”, to which plaintiff answered in writing: “I do not know the names of any persons who witnessed the accident. I do not know if my attorneys have located any witness or witnesses to the accident during their investigation of the case. I have heard of several people who were present at the scene of the accident, including the Highway Patrol and Sheriff of Christian County.”

Defendant in said action then filed its motion to require plaintiff to make her answer more definite and certain by making complete answer to the question. That motion was denied on grounds, as stated in the return herein filed by respondent, “that the names of witnesses to an automobile accident which are discovered by an attorney during the attorney’s investigation of the cause for the client and known solely to the attorney are not subject to discovery by an interrogatory directed to the attorney’s client because the identity and names of such witnesses are privileged matter and constitute ‘work product.’ ”

Thereafter, defendant in said action sought mandamus in the Springfield Court of Appeals. That court summarily denied the writ, following which defendant, as relator (and hereinafter so designated), filed the instant proceeding in this court, jurisdiction of which is vested in this court under Art. V, § 4, of the Constitution of Missouri, 4 RSMo 1959 p. 4822, V.A.M.S. Our alternative writ issued. Respondent’s return to the alternative writ and relator’s reply to the return were duly filed, this cause was briefed by both parties and in due course orally argued and submitted.

The action out of which this proceeding arises was brought by Mrs. Audrey F. Meri-deth to recover damages from relator in the sum of $25,000 for the wrongful death of her husband, Leonard Kermitt Merideth, allegedly caused by and resulting from the collision of a southbound motor vehicle operated by the latter upon a public highway in Christian County and a northbound motor vehicle operated by an agent or servant of relator in the course of his employment. The petition alleged that the collision was directly caused by negligence of the operator of relator’s vehicle in seven alleged respects.

Prior to adoption of S.Ct. Rules 56.01 and 57.01, pretrial right of discovery by means of written interrogatories was governed by statute, § 510.020, R.S.Mo 1959, V.A.M.S. Under the provisions of that statute we had deemed it necessary to hold: “It seems clear from the foregoing cases, that the names of witnesses to an accident which are in the possession of one of the parties to a suit may not be obtained by the other party either by interrogatories or by deposition, except in so far as the party called upon to produce or state the names has personal knowledge that the named persons were witnesses to, or were present at the scene of, and at the time of, the casualty. It must follow that, the names of purported eyewitnesses to an accident may not be obtained by a party (to a suit involving that accident) from a third person, where the third person’s knowledge as to whether the named witnesses were in fact witnesses to the casualty is based upon hearsay.” Johnson v. Cox (1953), Mo., 262 S.W.2d 13, 17. And, in one of the cases therein cited, State ex rel. Williams v. Buzard (1945), 354 Mo. 719, 190 S.W.2d 907, on motion for rehearing, we had stated, loe. cit. 912: “The spirit of the new (legislative) code is to allow essential information, admissible in evidence, to be obtained by the less expensive method of interrogatories whenever that is reasonable and proper.” Numerous other cases not here necessary to cite held to the same general effect.

Those cases, correctly decided under the discovery provisions of the 1943 (effective January 1, 1945) legislative civil code, § 510.020, supra, are however no longer con[40]*40trolling. In 1945, hard upon adoption of the present Constitution by the people of Missouri, which contained a new provision, Art. V, § 5, authorizing the Supreme Court to “establish rules of practice and procedure for all courts”, a committee, thereafter succeeded by a reviewing committee, was appointed to draft and submit proposed rules of civil practice and procedure. After years of study and exhaustive research, the latter committee, aided by the earlier work of the former committee, and by the bench and bar of this State, submitted its report and the Civil Rules of Practice and Procedure proposed by it, which were adopted in 1959 and became effective April 1, 1960. These rules were patterned in the main from Federal Rules of Procedure adopted in 1937, as thereafter supplemented and amended. Among the rules by this court thus adopted were Rules 56.01, providing for discovery under interrogatories, taken in substance from Federal Rule 33 and certain recommended amendments, and Rule 57.01(b), providing for discovery by depositions, taken in part from Federal Rule 26(b).

Rule 56.01, supra, 4 RSMo 1959, p. 4975, Vernon’s Annotated Missouri Rules (V.A. M.R. 41-82, p. 189) in material part, provides :

“Interrogatories may relate to any matters which can be inquired into under Rule 57, and the answers may be used to the same extent as provided in Rule 57 for the use of the deposition of a party. Interrogatories may require as a part of or with the answers copies of all statements concerning the action or its subject matter previously given by the interrogating party, or copies of such documents, papers, books, accounts, letters, or photographs, not privileged, as are relevant to the answers required, unless opportunity for their examination and copying be afforded. Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but the court, on motion of the deponent or the party interrogated, may make such protective order as justice may require.”

The “Committee Note and Comment”, V.A.M.R. 41-82, pp. 189-190, states in part: “[Tjhis rule broadens the scope of discovery on written interrogatories by adopting Rule 33 of the Federal Rules of Civil Procedure and a portion of the amendments tentatively recommended by the Federal Advisory Committee on Rules in 1954. One portion of the recommended draft omitted is that which would require the answering party to furnish ‘A listing of the names of witnesses whom the party intends to call at the trial.’ * * * The relevant portion of the Federal Advisory Committee’s notes on the redrafted Federal Rule 33 recommended in 1955 are set out for an understanding of the amendments, as follows:

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State Ex Rel. Pete Rhodes Supply Co. v. Crain
373 S.W.2d 38 (Supreme Court of Missouri, 1963)

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Bluebook (online)
373 S.W.2d 38, 1963 Mo. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-pete-rhodes-supply-co-v-crain-mo-1963.