LaCroix v. Grand Trunk Western Railroad , 368 Mich. 321 ( 1962 )

Kavanagh, J.

Defendant railroad company is here on appeal, by leave granted, from an order entered by the trial court requiring defendant to produce stenographic statements taken from the plaintiffs by defendant’s agent, so that the plaintiffs could examine and copy the same. The trial judge entered the order under section 6 of Court Rule No 35 (1945). ^*

The cases involved are trespass actions for personal injuries to plaintiffs Walter H. LaCroix and Mary I. LaCroix.

The declarations of the plaintiff allege that at approximately 4 o’clock in the morning of April 25, 1958, the vehicle of the plaintiff Walter H. LaCroix was stuck on defendant’s main line about 45 feet west of a crossing in Kimball township, St. Clair county, while headed in a westerly direction with its headlamps duly lighted as required by law, and that while in that position it was struck by defendant’s speeding eastbound passenger train.

Subsequent to the filing of the declarations and defendant’s answers, the plaintiffs filed motions for discovery asking the trial court to order the defendant to produce all written, recorded, or stenographic statements obtained from either plaintiff by defendant, or anyone acting in defendant’s behalf, in any way bearing on the matters involved in the 2 cases.

Defendant admits that a joint stenographic statement was taken from plaintiffs on May 19, 1958.

Plaintiffs claim that as far as they know, there were only 3 witnesses to defendant’s train hitting the LaCroix ear. These were the railroad engineer and fireman, and Mr. LaCroix himself. Mr. LaCroix’s memory of this event was erased by a trauma. He has no present knowledge of how his injuries occurred or how his automobile became stuck on the railroad track. For evidentiary rules which may arise on account of such traumatic amnesia, see Breker v. Rosema, 301 Mich 685 (141 ALR 867).

Mr. LaCroix was hospitalized for about 4 months under constant medication. He remembers nothing for a continuous period beginning several hours before he was injured and ending several weeks later. During this period of amnesia defendant’s claim agent took stenographic statements from Mr. and Mrs. LaCroix at the hospital. Mrs. LaCroix has no knowledge of how her husband was injured. Plaintiffs sought the stenographic statements in order to be able to prepare for trial. Defendant objected to the production of the statements on 2 grounds: first, that they would not be admissible under the rules of evidence governing trials; and secondly, that there was good cause not to produce the statements for plaintiffs’ examination because such would permit and encourage plaintiffs to color their testimony without fear of impeachment, and thus would not he in the interest of justice or in keeping with the spirit of the discovery rule of this Court.

Under the orderly process of preparing for trial ■under our present rule (Court Rule No 40 [1945]), which rule relates exclusively to discovery and production of hooks, papers, documents, or other tangible things relating to the merits of a pending action or suit, the trial court in its discretion, upon good cause shown, may order that any such books, papers, et cetera, be produced so that they may he examined and copied by the moving party. Thus the discovery authorized by Court Rule No 40 is not -impeded by the admissibility requirement of Court ■Rule No 35, § 6(b) (1945). Such requirement pertains to pretrial depositions only.

While we might hold the lower court was correct in entering the order pursuant to Court Rule No 35, '§ '6(b), we do not so rule. The sole question is whether the trial judge abused the discretion which is provided by said Court Rule No 40, and we hold he did not. See our like view of said court rule in Christie v. Board of Regents of University of Michigan, 364 Mich 202.

It appears beyond question the plaintiffs have shown a substantial reason why they should be permitted to inspect and copy the stenographic statements taken' by defendant’s agent. No adequate showing has been made to the contrary. We can conceive of no reason why any damage would be suffered by defendant railroad company therefrom. Certainly, it cannot be denied that one of the purposes of an interview with a possible claimant as soon as possible after an accident is to obtain information to be used in resisting an unjust or exorbitant •claim or to aid in the adjustment of the claim. But in obtaining and using such information against an adverse party, the conduct of the defendant in an action on the claim should be attended with fairness and without overreaching.

It may also fairly be assumed that a patient in a hospital, under medication for a long period of time, might be in a condition of shock. It might further fairly be assumed'that while in such a condition he would be unable to recollect just what had happened at the time of the accident or to appreciate the necessity of safeguarding his rights under such circumstances. The statements here involved were requested by the defendant railroad company and apparently voluntarily given by the plaintiffs under circumstances which should give the court concern to see that no unfair advantage was taken of the parties who voluntarily acceded to the request.

In view of the inability of plaintiff Walter H. LaCroix to recall any facts and circumstances surrounding the accident, the statements might aid in refreshing his recollection. In the interests of justice and fairness, those statements should be furnished to him.

Under these circumstances, we cannot say the trial judge abused his discretion.

The order is affirmed. Plaintiffs shall have costs.

Carr, C. J., and Dethmers, Kelly, and Otis M. Smith, J J., concurred with Kavanagh, J.

* As added and amended. See 334 Mich xl and 352 Mich xvii:— Reporter..