Carnation Co. v. Superior Court

SHINN, P. J.

An alternative writ of mandate was issued in this proceeding requiring the superior court to annul its order quashing a subpoena for the taking of the deposition of a witness or to show cause why it had not done so. It appears from the answer to the alternative writ that the order has not been annulled. The real parties in interest, being plaintiffs in an action pending in the superior court, assert the validity of the order quashing the subpoena. The question for decision is whether Carnation Company, the petitioner herein, had a right to take the deposition of one, Dr. R. P. Harwell, under the circumstances hereinafter related.

Donald Harwell and Ronald Harwell, minors, by their guardian

ad

litem, Mrs. Andrew L. Harwell, brought suit against Carnation Company for the recovery of damages alleged to have been sustained in drinking milk “bottled, pre

[139]

pared, produced and distributed” by the defendant and which it was alleged contained “a large quantity of varnish, paint, and/or other foreign substances which is totally detrimental for human consumption.” The defendant answered denying the material allegations of the complaint, and took the deposition of Mrs. Andrew L. Harwell, mother of the minors and their guardian

ad litem.

From the deposition it appeared that the minors are twins 3 years of age; that the children were taken ill; Dr. Harwell was called in, examined them, administered treatment, and continued to treat them for a considerable period of time. Included in the prayer for damages in the complaint was a demand for $500 for medical expenses of the plaintiffs. Defendant caused to be filed an affidavit for an order requiring Dr. Harwell to give his deposition and requiring him to produce X-rays of the patients and his records with respect to his findings, diagnosis and prognosis and of the calls made by him at the home of the patients and other calls at his office. A subpoena in due form was issued and proper notice was given plaintiffs’ attorney. Plaintiffs then gave notice of a motion to quash the subpoena and all proceedings for the taking of Dr. Harwell’s deposition specifying as grounds for the motion “that the doctor was not a party to this action and upon the further ground that he will be available for testimony at the time of the trial of the cause herein.” An affidavit of Dr. Harwell was filed stating that the giving of his deposition would result in “gross inconvenience to him ’ ’ and that he would be ‘ ‘ damaged irreparably ” if required to leave his work to give his deposition. The affidavit further stated that he would be present at the time of the trial and that he had already given to the defendant a report of his medical findings and a special laboratory report “of the materials alleged to have damaged the plaintiffs.” A reply affidavit was filed on behalf of the defendant which set forth specifically particulars with respect to facts allegedly within the knowledge of Dr. Harwell which could not be established by any other witness. Upon a consideration of the foregoing the court granted the motion to quash the deposition proceeding.