Vermilyea v. Chesapeake & Ohio Ry. Co.

11 F.R.D. 255, 1951 U.S. Dist. LEXIS 3599, 1951 A.M.C. 1178
CourtDistrict Court, W.D. Michigan
DecidedMarch 29, 1951
DocketNo. 1563
StatusPublished
Cited by4 cases

This text of 11 F.R.D. 255 (Vermilyea v. Chesapeake & Ohio Ry. Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vermilyea v. Chesapeake & Ohio Ry. Co., 11 F.R.D. 255, 1951 U.S. Dist. LEXIS 3599, 1951 A.M.C. 1178 (W.D. Mich. 1951).

Opinion

STARR, District Judge.

This action, under the Jones Act, 46 U.S.C.A. § 688, was begun in the District Court for the Northern District of Ohio, Eastern Division, and on the defendant’s motion an order was entered transferring it to this district, 28 U.S.C.A. § 1404.

The complaint alleged in substance that on October 16, 1948, while employed as a member of the crew of the defendant’s steamship City of Midland No. 41 car ferry, plaintiff sustained certain injuries as a' result of defendant’s negligence, which injuries required his hospitalization and surgical treatment. Pie seeks to recover damages which he alleged resulted from such injuries. The defendant answered, denying the charge of negligence and plaintiff’s claim for damages.

Preceding the transfer of the casé to this district the plaintiff filed motion under Rule 34, as amended, Federal Rules of Civil Procedure, 28 U.S.C.A.; for an order directing the defendant to produce for inspection and copying:

“1. * * * Any statements or reports made by the master, officers and any member of the crew of the vessel with respect to the accident, to include statement of the accident taken on behalf of the underwriters. The defendant is not called upon to produce any statements obtained by its attorneys.

“2. The rough and smooth logs and any other books or records relating to the courses and movement of the vessel and the occurrences on board the vessel relating to the alleged accident.

“3. The medical log, or any other books,^ papers, doctors’ reports, and records pertaining to the diagnosis, care and medical treatment of Charles Emory Ver-milyea during the voyage or subsequent voyages, or thereafter.

“4. To permit the plaintiff or his counsel to have and make a discovery and inspection ■ aboard the vessel, particularly where plaintiff sustained his injuries, with a right to take photographs, make measurements, also permitting a surveyor and a photographer to go aboard the vessel for the purpose aforesaid, with notification to plaintiff’s attorney as to the location of the vessel and the convenience in boarding the same.

[257]*257"5. Accurate blue prints or drawings' of the vessel, showing where the accident occurred and accurate blue prints or drawings showing the relationship of the situs of the accident to the rest of the vessel.”

Preceding the transfer to this district, the plaintiff also filed and served the following written interrogatories to be answered by the defendant, Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A.:

“1. State the full name, capacity, and address of each of the officers and crew members who served aboard the defendant’s vessel for the voyage during which plaintiff suffered the injuries ■ complained of and stated in his complaint.

“2. State which of the officers and crew members mentioned in the preceding interrogatory are still in the employ of the defendant.

“3. Were any log book entries made concerning the accident? If so, in which leg or logs do these entries appear ?

“4. If the answer to the preceding interrogatory is in the affirmative, please state the following:

“(a) When were the log book entries made?

“(b) By whom were the log book entries made ?

“(c) Do the entries state the entire occurrence, and if so, attach to your answer a verified or photostatic copy of the log book entry.

“5. State in full detail the medical treatment and care afforded plaintiff by the defendant for the injuries complained of and suffered by the plaintiff in the instant action, and attach a true copy of all medical reports made to the defendant by defendant’s own doctors.”

The defendant has filed a brief in opposition to plaintiff’s motion to produce and has also filed objections to plaintiff’s interrogatories numbered 1 and 2. Rule 34, as amended provides: “Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party ;ta. produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control”.

.The above rule must be considered in connection with Rule 26(b) as amended, which provides: “Unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter, involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.”

The object of Rule 34 is to make relevant and nonprivileged documents and objects in the possession of one party to an action available to the other party, thereby eliminating strategic surprises and permitting the issues to be simplified and the trial to be expedited. Hickman, Administrator, v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; Olson Transp. Co. v. Socony-Vacuum Oil Co., Inc., D.C., 7 F.R.D. 134; Walling v. R. L. McGinley Co., D.C., 4 F.R.D. 149; Leach v. Greif Bros. Cooperage Corporation, D.C., 2 F.R.D., 444 ; 2 Barron & Holtzoff, Federal Practice and Procedure, page 484, § 791. The rule authorizes a broad sweep of access, inspection, examination, copying, and photographing of documents or objects in the possession of the opposite party. Aside from the question of privilege, relevancy and good cause for the production and examination are the determinative consider[258]*258ations in granting discovery under this rule. Hirshhorn v. Mine Safety Appliances Co., D.C., 8 F.R.D. 11; 2 Barron & Holtzoff, page 487, § 793. The rule vests in the trial court discretion as to whether, and within what limits and under what conditions, production and inspection of documents shall be granted. 4 Moore’s Federal Practice, 2d Ed., para. 34.01 et seq.; 2 Barron & Holtzoff, page 526, § 803.

■[4] It is clear that the evidence sought to be obtained by paragraphs 1, 2, and. 3 of plaintiff’s motion is not privileged and will be admissible at the trial of this case on the merits, or that it may lead to the discovery of admissible evidence. Therefore, under Rules 34 and 26(b) the plaintiff is entitled to the production for inspection, copying or photographing, of the reports, logs, books, records, and papers specified in paragraphs 1, 2, and 3 of his motion. Mulligan v. Eastern S. S. Lines, Inc., D.C., 6 F.R.D. 601; Revheim v. Merritt-Chapman & Scott Corporation, D.C., 2 F.R.D. 361; Murphy v. New York & Porto Rico S. S.

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Bluebook (online)
11 F.R.D. 255, 1951 U.S. Dist. LEXIS 3599, 1951 A.M.C. 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vermilyea-v-chesapeake-ohio-ry-co-miwd-1951.