Nelson v. Superior Court

WASTE, C. J.

Application for writ of prohibition. Petitioner is the secretary-actuary of the Retirement Board of the San Francisco City and County Employees’ Retirement System. As such, it is his duty to supervise the compensation, medical care and hospitalization of city employees receiving injuries arising out of and in the course of their employment, and to keep all the medical reports concerning such injuries. In an action brought on behalf of an injured employee of the city, petitioner refused to appear in answer to a subpoena to take a deposition. For such refusal he was adjudged to be in contempt of court, and is about to be sentenced for his disobedience of the court’s process. He is here seeking by writ of prohibition to avoid the infliction of the penalty.

The facts: M. J. Dalton, a member of the San Francisco fire department, was seriously injured in 1936 when the firetruck upon which he was riding was struck by a street car operated at the time by the Market Street Railway Company. The medical reports of the treating and examining physicians, and the X-rays made, were sent to petitioner’s office to be kept with other reports concerning the case of said Dalton. Subsequently, Dalton became mentally incompetent, and suit to recover damages for the personal injuries suffered in the collision was brought by his guardian

ad litem

against the railway company and the motorman of the colliding car.

[731]

After the suit was brought, the Market Street Railway Company sought to take this petitioner’s deposition. The affidavits of the secretary of the moving company defendant allege that the “corporation desires to take the deposition of Ralph R. Nelson (this petitioner), or his designated representative who is a witness and the only one who can establish facts material to the issue in said action”; “and desires that he produce all the records pertaining to the examination, care and treatment of M. J. Dalton, the plaintiff in the above entitled action, including all of the X-rays and X-ray reports and the reports of physicians or surgeons attending or treating said M. J. Dalton, which pertain to the examination, care and treatment of said M. J. Dalton, the plaintiff in the above entitled action; said evidence is material to the issues involved in said action ...”