Fox v. Clifton Mfg. Co. , 122 S.C. 86 ( 1922 )

December 5, 1922. The opinion of the Court was delivered by Appeal from an order of Circuit Judge Sease revoking a previous order issued by him requiring the plaintiff to appear before him and be examined as a witness under Section 428, etc., of the Code of Civil Procedure.

The action for damages on account of personal injuries was commenced February 6, 1922. The date of the injury is not given in the complaint. The defendant duly answered the complaint, and on March 3, 1922, obtained from Judge Sease an order requiring the plaintiff to appear before him on March 11, 1922, and be examined as a witness in reference to the issues involved in the case. The attorneys for the plaintiff immediately gave notice that they would move Judge Sease for an order revoking his order of March 3. This motion was heard on the day appointed for the examination of the plaintiff, and after argument the Circuit Judge held that under the case of Thomas v. Spartanburg Ry.,etc., Co., 107 S.C. 109; 91 S.E., 973, before a party to an action is entitled to examine the adversary, under the provisions of the Code, he must show a good and valid reason upon which the Court can exercise its discretion in the matter; and that, as the defendant had made no other showing than that the plaintiff was a party to the action which, in his opinion, was not a sufficient showing, the revocation of the previous order must follow. He accordingly signed an order revoking it and refusing the defendant's application to have plaintiff examined. From this order the defendant has appealed.

The defendant takes the position that a party to an action is entitled, as a matter of legal right, to examine his adversary under said sections of the Code, without assigning any other reason than the mere fact that the person sought to be examined is a party to the action. This presents the issue of law to be determined; the defendant claims it is an absolute right, the Circuit Judge holds that it was a matter for the exercise of his discretion upon a proper showing by the defendant.

No illumination of this question can be found in the rules which regulate the equitable remedy of discovery, for it is held in the case of Hall v. Joiner, 1 S.C. 186, that the right to examine an adversary party, conferred by the Code, is a new remedy and operated to destroy the pre-existing remedies in equity; and in the case of Thomas v. SpartanburgRy., Gas Electric Co., 107 S.C. 109; 91 S.E., 973, that it operated to "take the place of the former equitable remedy by a bill in discovery." We are therefore effectually shut into a construction of the provisions of the Code. Nor are we aided at all by the cases which involve the right of a party, under Section 427, to secure an inspection of books, papers and documents in the possession of the adversary party. Thomas v. Spartanburg Ry., Gas Electric Co.,107 S.C. 109; 91 S.E., 973; Jenkins v. Bennett, 40 S.C. 393;18 S.E., 929; Wells v. Holman, 115 S.C. 443;106 S.E., 224; Parker v. Railroad Co., 48 S.C. 364;26 S.E., 669, for the reasons that the provisions of Chapter 5, § 427 (the only section in the chapter), relative to inspection of books, etc., is essentially different in several particulars from Chapter 6, containing Sections 428 to 436, relating to the examination of parties. The subjects are so different as to suggest assigning them to different chapters, Chapter 5 being entitled "Admission or inspection of writings" and Chapter 6, "Examination of parties." Chapter 5 authorizes an inspection of writings only upon three conditions: (1) Due notice to the adverse party of the application for the order; (2) the issuance of the order by a Court or a Judge or a Justice thereof; (3) the exercise of the Judge's discretion in the matter.

It was perfectly natural, therefore, that we should find in the decision construing this section language such as is found in Jenkins v. Bennett, 40 S.C. 393; 18 S.E., 929, quoted with approval in Thomas v. Spartanburg Ry., Gas ElectricCo., 107 S.C. 109; 91 S.E., 973.

"We think it clear that before this somewhat extraordinary power should be exercised, the moving party should show, at least prima facie, such fact or facts as would enable the Court to exercise its discretion as to whether such a power as is invoked should be exercised."

Now, turning to Chapter 6 relating to the examination of parties, we do not find any provision for an order by any one for the examination of the adverse party; consequently no provision for an application for such order, and no provision for notice of such application, naturally finding no provision for an order by a Court or a Judge or Justice thereof, we find nothing indicating the exercise of a discretion by him and, of course, no implied requirement of an affidavit or other showing upon which such discretion is to be exercised. The only duties or powers imposed upon a Judge in connection with this matter are to preside at the examination, to change the time of notice if good cause be shown, to compel the attendance of the witnesses and to file the examination, it is assumed, with the Clerk of Court.

It has been suggested that the expressions found in Section 429, "may be examined," "may be compelled," denote the existence of a discretion lodged in some one, controlling the matter. There would be much force in the suggestion if some officer had been designated to order the examination. As the provisions stand, no order is required and no officer is designated to issue it; the examination is to be had "at the instance of the adverse party," and to him is the expression, "may be" referrable. The same may be said of the expression "may be had" in Section 430. In 14 Cyc., 341, it is said:

"Under the statutes of some of the States the examination of the adverse party before trial is a matter of course, under the same restrictions under which the examination of witnesses may be had."

In Vann v. Lawrence, 111 N.C. 32; 15 S.E., 1031, the provisions of the North Carolina Code being identical with those of ours, the Court, after quoting the substance of what are our sections 429, 430, declares:

"Nothing in these two sections, or in the succeeding sections on that subject . . . suggests that leave to examine the opposite party must be obtained. On the contrary, the examination is to be treated as a right to be exercised before trial `at the option of the party claiming it.'"

The Court proceeds to draw the distinction between a proceeding under the section allowing an inspection of writings and the one under consideration, showing that the former requires an order to be issued in the discretion of the Judge, but that the latter has no corresponding requirement.

In Niblo v. Ede, 39 S.D., 338; 164 N.W., 109, the provisions of the South Dakota Code being identical with ours, the Court, after quoting sections corresponding to our Sections 428, 429, 430, declares:

"There is absolutely nothing in the chapter relating to the examination of an adverse party as a witness orally before the Judge or a Referee which requires or even suggests an affidavit or an order of the Judge or the Court in connection with such proceeding except that upon good cause shown the five-day notice may be shortened."

The Court then also draws the same distinction as we have noted above between the procedure under Chapter 5 and that under Chapter 6, observed as we have seen by the North Carolina Court.

In Epstein v. American Co., 95 N.J., 391; 113 Atl., 319, it is held:

"The amendment [to Practice Act, § 144] is intended to enable any party to an action to examine the adverse party before trial after issue joined without procuring an order for the purpose, upon service of the usual form of subpoena and the payment of the necessary fee."

The amendment referred to may be found in the Act of 1914 (P.L.N.J., p. 151), and in no essential particular differs from our statute.

A further consideration lends support to our conclusions. Section 429 authorizes the examination of a party as a witness, at the instance of the adverse party, upon the trial of the cause; Section 430 extends that privilege, at the option of the adverse party, to an examination before trial; the two privileges are out upon the same basis. Certainly, if the adverse party should avail himself of the first privilege he would not be required to obtain an order therefor, and there appears to be no reason for insisting upon it as a condition to the second privilege.

As to the wisdom or expediency of the privilege this Court is not concerned; that is a legislative and not a judicial question.

The order appealed from is reversed.

MR. JUSTICES WATTS and MARION concur.

MR. CHIEF JUSTICE GARY dissents.