State Ex Rel. Chicago, Rock Island & Pacific Railroad v. Wood

*1035 BLAIR, J. An original proceeding in prohibition. Respondent is Judge of the Circuit Court of Grundy County and as such made an order upon relator for the production of certain papers, letters, etc. Relator contends this order was in excess of respondent’s juris-, diction. Our provisional rule was ordered to be issued. Respondent entered his appearance and filed return to the petition as and for our provisional rule. The facts have been stipulated. *1036 Tbe Chicago, Burlington & Quincy Railway Company, herein referred to as the “Burlington,” owned certain railroad tracks in Clay County, Missouri, near Kansas City, and operated its trains thereover. The Chicago, Rock Island & Pacific Railway Company, relator herein, and sometimes referred to as the ‘ ‘ Rock Island,' ’ leased the use of said Burlington tracks and also operated its trains thereover, under a contract Avith the Burlington, whereby the Rock Island undertook to defend, and to save the Burlington harmless from, all suits filed against the Burlington due to alleged negligent operation of Rock Island trains over the tracks so leased from the Burlington. ' One James M. Smith ivas section foreman in the employ of the Burlington. He Avas killed by a locomotive and train of the Rock Island. His widow, as administratrix, sued the Burlington for damages for his death. Under its contract the Rock Island undertook the defense of the case through its regular attorneys. Upon the second trial, said administratrix recovered judgment. The Burlington appealed to this court. After the Smith case was tried, one James R. Kurfman, a discharged section foreman, filed suit against the Rock Island claiming the modest sum of $260,000 as damages for causing his wrongful discharge by the Burlington and for making certain alleged slanderous statements tending to reflect upon the veracity of Kurfman as a witness in the first and second trials of the Smith case. Upon Kurfman’s motion and over the exception of relator, respondent made the following order: “Plaintiff’s petition or order on defendant to produce for inspection of plaintiff with privilege of making copies of certain papers, letters and documents. “Coming on to be heard, appeared E. M. Harber on part of plaintiff and Hale Houts on part of defendant and both answering read)7 for hearing of said petition and application. The court after considering plaintiff’s said petition and application and petition in this cause filed, which is and Avas to said application and petition here considered duly attached and made part thereof and there being no denial of said application and petition to produce said papers, letters and documents therein specified and the same being considered material and competent evidence relating to the merits of said cause and that plaintiff is. entitled to have opportunity to inspect and if desired, to make copy thereof. It is therefore ordered by the court that to this end and purpose, the defendant on Wednesday the second day of June, 1926, at the hour of ten o’clock a. m., have and produce at the law office of its local attorney R. E. Kavanaugh at Trenton, Grundy County, Missouri, the following letters, papers and documents in its possession mentioned and described in plain *1037 tiff’s application and petition to-wit, letters or copies thereof written by defendant, its officers, agents and attorneys to and mailed and delivered to the attorneys, officers and agents of the Chicago, Burlington Railway Company on, and between the twenty-second day of October, 1924, and the tenth day of November, 1924, requesting and demanding plaintiff’s discharge by the said Chicago, Burlington Railway Company. Also letters written by defendant’s attorney’s, officers during said time October 22nd, 1924, to November 10th, 1924, to the Chicago, Burlington and Quincy Railway Company, charging and alleging plaintiff had sworn falsely and committed perjury as a witness upon the trial of the cause of Nellie Smith, administratrix, against the Chicago, Burlington and Quincy Railway Company at Maysville, DeKalb County, Missouri about October 22nd, 1924, at which time said case was in said court tried. “That defendant having as it to the satisfaction of the court appears, letters written to it, its agents and officers by the officers and agents of the Chicago, Burlington and Quincy Railway acknowledging receipt of letters above mentioned of defendant, its officers, agents, and attorneys and admitting and showing plaintiff was discharged from his employment with the Chicago, Burlington and Quincy Railway Company about November first, 1924, by reason of the letters and charges of defendant, its officers, agents and attorneys made against him, plaintiff, said letters so written by said Chicago, Burlington and Quincy Railwáy being so written on and between October 22nd, 1924, and November 10th, 1924. A more ■particular description thereof plaintiff is unable to give nor does defendant request such description or deny possession thereof. ‘ ‘ The foregoing is ordered filed and entered as part of proceedings of this court, May 25, 1926. “L. B. Woods, Judge.” I. Prohibition is the appropriate remedy, if respondent has in fact exceeded his jurisdiction as circuit judge in making the order here challenged'. [State ex rel. v. Trimble, 254 Mo. 542.] The remedy by appeal is inadequate to meet the situation, if in fac£ the respondent exceeded his jurisdiction in making the order, because the alleged invasion of relator’s rig-hts will have occurred and whatever damages it will be compelled to suffer will have accrued before an appeal on the merits can be decided. II. We find no merit in relator’s first contention that respondent’s order constitutes a roving commission to Kurfman and his attorneys to examine into the private affairs of relator, regardless of the materiality, competency or relevancy of. any of the letters mentioned *1038 in the order. The first count of the petition in Kurfman’s case charged that relator wrongfully caused his discharge by the Burlington. The order recites that said petition was attached' to and made a part of Kurfman’s motion. If there are in existence any letters from the Rock Island or its attorneys and agents having' a bearing upon the cause of Kurfman’s discharge by the Burlington, such letters would be relevant and material evidence. It is said that they would be privileged communications between client and attorney. That question will be considered later. Letters of a particular kind are described in the order and relator is required to produce them at the office of its attorney for inspection and copy by Kurfman and his counsel. If there are no such letters, relator can so show in its return to said order. The order certainly constitutes no roving commission. III. Relator’s second contention is equally without merit and is fully answered by what we have already said in Paragraph II. If letters or copies thereof are in existence, in which relator or its attorneys or agents requested or demanded that Kurfman be discharged by the Burlington, and if relator has letters from the Burlington, acknowledging receipt of relator’s letters on the subject of Kurfman’s discharge, they certainly are material and have an important bearing upon the issues raised by the petition in Kurfman’s case against relator. IY. Similarly without merit is relator’s third contention that respondent’s order is not supported by any verified application stating that relator has any such letters or copies of letters in its possession or control. The petition for such order and alleging such facts does not appear to have been sworn to, but such verification is not required by Section 1378, Revised Statutes 1919, under which respondent’s order was issued. While the record does not disclose formal proof of notice to relator of the filing of the petition for the order, the order itself recites the presence and participation of relator’s counsel when the order was made. V. Relator’s contentions 4 and 5 will be noticed later. Contention 6 is that the petitioning for and procurement of respondent’s order are part of a scheme or conspiracy to intimidate relator and wrongfully recover damages in the cases of Smith, Administratrix, v. Burlington, and Smith, Administratrix, v. Rock Island, and Kurfman v. The Rock Island. No evidence of any unlawful conspiracy appears in the record. Kurfman had the right, regardless of his motives, to the issuance of the order in his case against relator, if the letters and copies of letters described *1039 in bis petition are relevant and material to the issues involved in said suit. Obviously, the fact that the production of such letters might also disclose evidence useful in the Smith cases cannot prevent Kurfman from the exercise of his right to inspect and copy said letters, if he is otherwise entitled'to such inspection and copy. YI. In its contention 7 relator invokes State and Federal constitutional provisions against unreasonable searches and seizures and guaranteeing the equal protection of the law and due process of law and also invokes the Missouri constitutional provision for the administration of right and justice without denial. [U. S. Constitution, Sec. 1 of Amendment XIV and Amendment IV; Missouri Constitution, Sec. 11, Art. II; Sec. 30, Art. II, and Sec. 10, Art. II.] Only unreasonable searches are prohibited. An order requiring the production of letters and copies of letters relevant and material to the issues on trial and permission to the opposite party to inspect and take copies of such letters in no sense amount to an unreasonable search, at least unless such letters are privileged communications. Relator has cited no authority to the contrary and we think none can be found. Relator was required to produce letters or copies thereof written to the Burlington between October 22, 1924, and November 10, 1924, by the Rock Island, its officers, agents and attorneys, “requesting and demanding plaintiff’s (Kurfman’s) discharge by said Chicago, Burlington & Quincy Railway Co.” and letters between the same dates “charging and alleging plaintiff (Kurfman) had sworn falsely and committed perjury as a witness,” etc. Kurfman was given no authority to go to relator’s files and search for such letters, although relator’s expressed apprehension might justify the belief that Kurfman had been given such authority. Relator was required to produce such letters. If no such letters are in existence, it could not be required to produce them. If they are in existence and in relator’s‘possession, as charged in Kurfman’s motion and are not privileged communications, it would seem that they are relevant and material and that Kurfman is entitled to inspect the same and to taire copies thereof and none of relator’s constitutional rights were invaded, either as to the security of his papers or by being deprived of due process of law. VII. The only contention of relator remaining to be considered is that the enforcement of respondent’s order will, require it to produce communications between attorney and client which are confidential and therefore privileged. We re-garc| this as the serious question in the case. ' Under the arrangement between the Burlington and the Rock Island, whereby the Rock Island undertook to defend suits brought *1040 against the Burlington growing out of the use of the Burlington tracks by the Rock Island, the Burlington clearly was the client of the attorneys furnished to it by the Rock Island (relator )to defend the case of Smith, Administratrix, v. The Burlington. Communications between the Burlington and the said attorneys of relator, with reference to the conduct of the litigation, would be privileged communications. [40 Cyc. 2375 and 2379; State v. Dawson, 90 Mo. 149, l. c. 154.] Such communications would not be competent evidence because they would be privileged communications. In so far as the order undertook to require relator to produce copies of the letters written by its attorneys representing the Burlington in the case of Smith, Administratrix, v. The Burlington, the order is too broad, because it calls for the production of privileged' communications which, upon proper objection, would not be admissible in evidence. [18 C. J. 1130; Travelers’ Ins. Co. v. Jackson, 206 N. W. 98; Cully v. Northern Pacific Railway Co., 77 Pac. 202; Stapley v. Canadian Pacific Railway Co., 5 Alberta L. R. 341.] It would seem that the same privilege cannot be invoked as to letters, if any, written by authorized agents or attorneys of relator who did not bear the relation of attorneys to the Burlington. To be privileged such communications, whether made by the client to the attorney or by the attorney to the client, must be made during the existence of the relationship and must have been made because of such relationship. [40 Cyc. 2366 and 2367.] If relator has in its possession letters or copies of letters written by its authorized agents or attorneys (other than those of its attorneys who represented the Burlington) and if such letters asked for the discharge of Kurfman or charged him with perjury, no good reason appears why such letters are not competent, relevant and material evidence and hence properly subject to the order for their production for inspection and copy. The order appears to be too broad in another respect. It would seem that any letters written by attorneys and agents of relator subsequent to the discharge of Kurfman would not be letters written in the scope of the agency of the writers in effecting for relator the discharge of Kurfman. Whatever was said in such letters, if anything, about such discharge after it occurred would be merely hearsay and not binding on relator and therefor inadmissible in evidence. Respondent could not properly order relator to produce letters of that sort even though they were not privileged communications. VIII. As the order made by respondent called for letters written after the alleged' date of Kurfman’s discharge and as said order is also susceptible of the construction that relator must produce for *1041 inspection letters and copies oí letters written to the Burlington by its attorneys, 'which may be privileged communications, the order in such respect and to that extent was too broad. Respondent exceeded his jurisdiction in making the order so broadly. There is no way this court can modify the order or limit its effect. All we should do is to prohibit the enforcement of the order as a whole and as made by the respondent, leaving him free hereafter to proceed along lines not herein declared to be improper. - ■ For the reasons stated, our provisional rule upon respondent is made absolute. All concur, except Gantt, J., not sitting.