Atchison, Topeka & Santa Fe Railway Co. v. Superior Court

NOURSE, J. pro tem.* Petitioner is the defendant in an action brought in the respondent court by one Abernathy to recover damages for personal injuries. It here seeks a writ of mandate to compel the respondent court to grant its motion to be permitted to inspect and make copies of certain papers in the possession of plaintiff.

The facts are undisputed. The accident in which Abernathy was injured occurred in New Mexico in October 1958. About five days after the accident the agent of petitioner interviewed Abernathy concerning his knowledge of the facts surrounding the accident in question and as he interviewed him, wrote the substance of his statements upon a typewriter, making an original and a carbon copy thereof. Upon the statement being completed he asked Abernathy to sign the original. Abernathy stated he did not desire to sign it until he had consulted with his brother. The agent then left both the original and copy of the statement with Abernathy. The agent had promised Abernathy a copy of the statement. When the agent returned to the hospital to pick up the signed original he was advised by Abernathy that both the original and copy had been taken by his brother to Los Angeles. They are now in the possession of Abernathy’s counsel who has refused to permit petitioner to inspect said papers and take copies thereof. The deposition of Abernathy has been taken and he denies any memory of giving the statement.

[491]Upon being refused permission to examine and take copies of the statement, petitioner moved the respondent court for an order directed to Abernathy permitting petitioner to inspect and take copies of the statement. This is supported by a declaration showing the above stated facts and the fact that petitioner’s agent now had no memory of the contents of the statement.

We have reached the conclusion that petitioner is entitled to the writ prayed for. Respondent real party in interest relies upon McClatchy Newspapers v. Superior Court, 26 Cal.2d 386 [159 P.2d 944]; Adams v. Superior Court, 49 Cal.2d 427 [317 P.2d 983] and our decision in Steele v. Superior Court (Cal.App.) 9 Cal.Rptr. 14 (this opinion is no longer authority as hearing has been granted in Supreme Court). These eases are not applicable here. The rules laid down in those cases as to the showing necessary to support an order for the inspection of books and records of another are founded upon that person’s constitutional right to be free from unreasonable search and seizure. (See McClatchy Newspapers v. Superior Court, supra, at p. 396.) In neither of the cases cited nor in the eases upon which the respondent court relies in the cases cited, did the person seeking discovery have any proprietary interest in the papers or documents.