Craddock v. Queen City Coach Company

DeNNY, C.J. The primary question involved on this appeal is whether or not the plaintiff is entitled to the information directed to be given in the order entered in the court below. According to the evidence adduced in the hearing below, the only statement or report made by defendant’s driver was the statement *382 taken by counsel for defendant for use in making up the report required by the Interstate Commerce Commission (I.C.C.), on a specific form furnished by the I.C.C. Parts of the accident report were reproduced verbatim in the report to the I.C.C. It further appears from the evidence that the defendant has no list, as such, of the names and addresses of the passengers, but counsel for defendant does have in his file cards given by passengers to the driver, commonly called “passenger cards.” If the order entered below is upheld, a list of passengers may be compiled from these cards. In pertinent part, Title 49 of the Code of Federal Regulations, § 194.4, requires: “(a) Every motor carrier, except private carriers of property, shall file a report prepared on the form prescribed in this section for such carrier’s use, for each recordable accident * * * which occurs in the operations of such .carrier.” Reports filed pursuant to the foregoing Regulations must be filed with the I.C.C. .' It is provided in 49 U.S.C.A. § 320(f), as follows: “No report by any motor carrier of any accident arising in the course of the operations of such carrier, made pursuant to any requirement of the Commission, and no report by the Commission of any investigation of any such accident, shall be admitted as evidence, or used for any other purpose, in any suit or action for damages growing out of any matter mentioned in such report or investigation.” Based on the foregoing statute, the Court, in LaChance v. Service Trucking Co., 215 F. Supp. 159, denied plaintiff’s motion for contempt citation when the custodian of the records at the time his deposition was taken, refused to permit counsel for plaintiff to inspect and copy the report of the accident made to the I.C.C. The Court further intimated that even if a motion were made pursuant to Rule 34, and even if good cause were shown as to why the plaintiff was entitled to inspect the documents, “ * * * they are faced with the provisions of 49 U.S.C.A. § 320(f), * * *.” In our opinion, since the abQve statute prohibits the introduction in evidence, or use for any other purpose, of any report made to the I.C.C. in any suit or action for damages growing out of any matter mentioned in such report, it would be violative of the spirit and purpose of the I.C.C. Act to require the defendant to give' plaintiff the data upon which the I.C.C.'report was. based.’ To do so would make the protective provisions of the statute worthless.- *383 On the other hand, in our opinion the plaintiff is entitled to a copy of the list of passengers requested and their addresses. In the case of Reynolds v. Boston & Maine Transp. Co., 98 N.H. 251, 98 A. 2d 157, 37 A.L.R. 2d 1149, the Court held that the plaintiff, a bus passenger who brought an action to recover damages for personal injuries sustained when she was thrown to the floor of the bus by reason of the negligence of defendant’s bus driver, was entitled to the names and addresses of other passengers obtained on cards passed out and collected by the driver following the accident. The Court said: “* * * These passengers as witnesses to this accident are not the exclusive property of either party. In the interest of justice both parties are entitled to have their testimony introduced in this action for whatever help it may furnish in arriving at a just determination. Plaintiff is not endeavoring to ascertain what defense the defendant contemplates making nor facts that exclusively relate to its case but is seeking discovery of facts which will enable her to prove her case. * * *” Similar orders were upheld in Evtush v. Hudson Bus Transp. Co., 10 N.J. Super 45, 76 A. 2d 263, aff'd. 7 N.J. 167, 81 A. 2d 6, 27 A.L.R. 2d 731; Belding v. St. Louis Pub. Serv. Co., 358 Mo. 491, 215 S.W. 2d 506; McMahon v. Hayes-73rd Corp., 197 Misc. 318, 98 N.Y.S. 2d 84; Fur-man v. Central Park Plaza Corp. (Ohio), 102 N.E. 2d 622. See also 37 A.L.R. 2d Anno: Discovery-Names of Witnesses, page 1152, et seq. We hold that the list of names and addresses of the passengers on defendant’s bus at the time of the accident complained of herein, is not privileged by reason of the attorney-client relationship. 139 A.L.R. Anno: Attorney-Privileged Communications, page 1250, et seq. On the record before us, in light of the conclusions we have reached based on the statutes, Federal Regulations, and cases cited, we deem it unnecessary to determine whether or not the report made to defendant’s counsel for the purpose of making the report required by law to the I.C.C., is privileged by reason of the attorney-client relationship. The plaintiff is entitled to the names and addresses of the other passengers who were on defendant’s bus at the time plaintiff was injured on 14 July 1961, but she is not entitled to a copy of the report made by defendant’s bus driver to defendant’s counsel for the purpose of making the report required by law to the I.C.C. The order entered below is modified to the extent indicated; otherwise, it is affirmed. Modified and affirmed.