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Fisher v. Glick

Superior Court of Delaware, New Castle County

March 17, 1953

FISHER et al.
v.
GLICK et al.

Action was brought to recover for damages arising out of automobile accident. One of the plaintiffs made a motion under rule of Superior Court for production of documents by opposing party on showing ‘ good cause’ therefor, to compel production of a written statement which had been prepared by claim agent for defendants' insurance carrier, and which had been signed by that plaintiff. The Superior Court, Carey, J., held that motion should be denied on ground that good cause was not shown.

Motion denied.

Under rule of Superior Court for production of documents by opposing party on showing of " good cause" therefor, plaintiff involved in automobile collision was not entitled to production of collision report, which had been prepared by claim agent for defendants' insurance carrier, but which had been signed by plaintiff, merely because plaintiff could not remember contents of statement because of lapse of time. Rules of Superior Court, rule 34.

Action for damages arising out of an automobile accident which occurred on October 21, 1951. Motion under Rule 34, Rules of Superior Court, to produce a written statement signed by one of the plaintiffs and now in possession of a claims agent for defendants' insurance carrier.

Brereton Sturtevant, Wilmington, for plaintiffs.

William Prickett, Wilmington, for defendants.

CAREY, Judge.

[47 Del. 584] By its express terms Rule 34, Rules of Superior Court, requires a showing of good cause by the moving party. The question here is whether good cause has been shown.

In support of the motion, an affidavit of plaintiffs' counsel has been filed reciting that she had personally talked with the claims agent of defendants' insurance carrier, who had advised her that he was the one who investigated the collision in issue; that he did, on or about October 29, 1951, prepare a statement of ‘ his' alleged facts regarding the collision and obtained the signature thereto of the plaintiff, William J. Fisher; that Mr. Fisher has informed the deponent that he remembers signing some such paper but has no copy thereof, and cannot now remember its contents because of the lapse of time. Suit was instituted about eleven months after the accident.

No prior Delaware decision has been brought to my attention which would be controlling. We, therefore, turn to the Federal decisions, inasmuch as our Rule 34 is identical with the Federal Rule of Civil Procedure bearing the same number, 28 U.S.C.A.

Plaintiffs rely upon Pennsylvania Railroad Co. v. Julian, 10 F.R.D. 452 and Bowdle v. Automobile Ins. Co. of Hartford, 11 F.R.D. 148, which are rulings of the District Court for Delaware. They also cite Viront v. Wheeling & Lake Erie Ry. Co., D.C., 10 F.R.D. 45. The Julian and Bowdle cases are not precisely in point, for neither involved a writing signed by a party personally. The Viront case did order production of a statement signed by a party, along with those of several other witnesses. The Court drew no distinction between the two types of papers; its discussion is confined to the reasons why the statements of others should be made available.

On the other hand, the following Federal cases have specifically declined to order

Page 465

production of a statement signed by a party under circumstances like those present here: Safeway Stores, Inc., v. Reynolds, 85 U.S.App.D.C. 194, 176 F.2d 476; Raudenbush v. Reading Co., D.C., 9 F.R.D. 670; [47 Del. 585]Lester v. Isbrandtsen Co., D.C., 10 F.R.D. 338; Hudalla v. Chicago, etc., D.C., 10 F.R.D. 363.

Of course, while the insurance adjuster prepared this statement, by signing it the plaintiff adopted it as his own. The present application therefore is not one for the production of the statement of some other person but is a request for the production of a party's own paper writing. It is not suggested that the insurance representative was guilty of any fraud, concealment, duress or other wrongdoing, or that the plaintiff was ill or incapacitated in any way at the time he signed it. Again, it is not suggested that production and examination is desired for the purpose of giving the plaintiff any information as to the actual facts and circumstances. Obviously, the only purpose is to enable counsel to ‘ know what testimony his client heretofore has given, and take care that his testimony at the trial is reasonably consistent therewith’ . Lester v. Isbrandtsen Co.,supra, 10 F.R.D. 341. In the four cited Federal cases where consideration was expressly given to this reason, it was held to be ...


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