Davenport Co. v. Pennsylvania R. R.

Opinion by Mr. Justice Williams, The plaintiff shipped fruit over the defendant’s line of road from Philadelphia to Altoona in June, 1892. When it reached its destination it was decayed to such an extent as to occasion loss to the shipper. An action was brought against the defendant in September of the same year to recover in damages for the loss suffered. Pending this action the plaintiff filed his bill on the equity side of the court for discovery in aid of the action at law. The specific discovery sought was of certain writings described in the bill as “ official reports and communications made by the agent of the defendant at Altoona,” in the course of the ordinary duties of such agent, to the main department in Philadelphia on and after the thirteenth day of June, 1892, for the information of the railroad company, “ and without any reference to any litigation.” A judgment pro confesso was obtained for want of an answer. Interrogatories were filed and answered. Two of these answers were excepted to, the exceptions dismissed by the learned judge, and this appeal was then taken. No question is raised except that of the sufficiency of the answers made to the second and third interrogatories. By these interrogatories the defendant was inquired of whether or not any officer, agent or employee of the railroad company at Altoona, on or about the thirteenth day of June, 1892, or afterwards, had furnished to the proper department of the company at Philadelphia in the ordinary course of duty, certain official reports relating to the plaintiff’s claim, and directing that copies of such reports be attached to the answers. The answers are not a simple denial of the existence of such a report as is. inquired after; but contain a statement of the general character of the report actually received. This report they allege was not made in the ordinary course of business, but for a special purpose, viz, to resist and defend against the claim which the plaintiff had made on the company by letter dated the seventh of July, 1892. That it was prepared after the receipt of the plaintiff’s letter and as a statement of the defence of the railroad company to the claim set up against it by him, so that if suit was brought it might be placed in the hands of counsel to guide them in making defence. The objection made to these auswers is that they set up new matter that should come into the case by [486] answer to the bill. There can be no doubt that the facts stated would have made a good answer to the bill, but we think they are equally good as a reply to the interrogatories. If they are true, as for the purposes of this appeal they must be assumed to be, they amount to a denial of the possession of any communication or report such as the plaintiff alleges, and an assertion that the documents they have were prepared after the plaintiff’s claim for damages was made, and for the special purpose of resisting it. This brings the documents within the privilege accorded to communications made to counsel. It is true as appellant points out that they were not made directly to counsel but the answers allege they were made to the immediate superior of him who made them for the express purpose of being by him submitted to counsel. They were in effect made to counsel, for they were made for the use of counsel in resisting this particular claim and were transmitted to the proper officer, that he might deliver them to tire attorney to whom the defence of the company might be committed. It is very clear that such reports do not belong to the class of instruments of which discovery will be compelled by a chancellor, and the learned judge of the court below was right in dismissing the exceptions. The decree appealed from is affirmed and the appellant directed to pay the costs of the appeal.