
    Ex PARTE SCHOEPF.
    
      Documentary evidence pertinent to the issue must he produced, when — Sections 5241 and 5289, Revised Statutes — Electric car passenger injured in accident — Report to company’s agent hy conductor — Is privileged communication, when — Question of punishment for contempt — Of person refusing to produce document — In taking of deposition — Competency of evidence —Legal proceedings.
    
    1. The clause in section 5247, Revised Statutes, “which he may be compelled to produce as evidence,” and as used in In re Rauh, 65 Ohio St., 128,' must be construed with section 5289, Revised Statutes, and is therefore limited to evidence pertinent to the issue, in cases and under circumstances where a party might heretofore have been compelled to produce the same by the ordinary rules of proceeding in chancery.
    
      2. The rule in chancery as to compelling the production of documents for the purpose of evidence and inspection was and is that a party is entitled to a discovery of such facts or documents in his adversary’s possession or under his control, as are material and necessary to make out his own case; but that this right does not extend to a discovery of the manner in which the adverse party’s case is to be established, nor to evidence which relates exclusively to the adverse party’s case.
    3. Where pursuant to a standing rule of the company, a report was made to the company’s claim agent, by the conductor and motorman of an electric car, of an accident in which a passenger was injured and detailing the circumstances of the accident, which report was made for the information of the claim agent for the purpose of settlement or for use of counsel in case of suit against the company and such report remained in the custody of the claim agent until suit was commenced against the company for injury received in such • accident, when it was turned over to, and has ever since remained in the possession of, the company’s counsel, such report is a privileged communication and its production cannot be enforced in the taking of depositions in such suit before the trial.
    4. While an officer before whom a deposition is being taken is empowered to punish as for contempt any person who refuses to obey an order to answer a question or to produce a document, he cannot do so unless it is so “lawfully ordered;” and where such question or document is not pertinent to the issues tendered or made, or is not material or necessary' to make out the case of the party calling for it, or is ineom- “ petent or privileged, the witness cannot lawfully be ordered to answer such question or to produce such document.
    (No. 9609
    Decided March 6, 1906.)
    Error to the Circuit Court of Hamilton county.
    On the eighteenth day of June, 1902, one Josephine Pace filed a petition in the court of common pleas of Hamilton county against The Cincinnati Traction Company, alleging in substance that the defendant is a corporation organized and doing business under the laws of the state of Ohio; and that it owned and used a street railroad leading from Cincinnati to the village of College Hill, on which cars were operated by means of electricity; and that on the seventeenth day of May, 1902, while the plaintiff was a passenger on one of the cars of the defendant, “the said defendant, by its agents or servants, so carelessly, negligently and unskillfully and improperly managed and conducted said car that the same was caused to run roughly; and unevenly and was jolted so that this plaintiff, through no fault or negligence on her part, was violently jolted and thrown from the said car and on to the street or roadway alongside said railroad,” whereby she was severely injured.
    On the twenty-sixth day of July, 1902, the defendant answered the said petition, admitting thát it was a corporation as alleged, and that it used a certain street' railroad leading from Cincinnati to College Hill, with cars operated by means of electricity; but denied that it owned the said street railroad, and denied each and every allegation contained in the petition, except as expressly admitted in said answer.
    Thereafter, on the eleventh day of August, 1904, one Charles E. Tenney, a notary public, before whom notice had been given to take depositions, issued a subpoena duces tecum to the plaintiff in error, J. H. Schoepf, to appear before him and give testimony in the case then pending, wherein Josephine Pace was plaintiff and The Cincinnati Traction Company was defendant, and containing the following clause: “and to bring with you any reports you may have control over, or in your possession, made by the motorman or conductor of a College Hill-Main car of The Cincinnati Traction Company, concerning any accident occurring May 17, 1902, because of which this suit was brought.”
    The plaintiff in error appeared before the said notary public on the sixteenth day of August, 1902, pursuant to the subpoena, and on examination tes-, tiffed that he was the claim agent of The Cincinnati Traction Company; that there was a standing order or rule which required every conductor or motorman in the employ of said company to report all accidents involving injuries to pedestrians, or passengers, damage to wagons or vehicles of any kind and the mechanical trouble of the cars, from which there could be any possible claim, or possible injury claimed, or damage to anybody’s person or property; that these reports were made on blank forms and were to be sent to the witness; that the purpose of these reports was to enable the company to prepare itself to defend in case a suit should be begun against the company on account of alleged negligence resulting in such accident, and also to advise the company as to the extent of its liability and as to the cause of the trouble; and that it might have the information which was contained in those reports on file for the purpose of defending any such suit; and for advising, or rather submitting to, counsel for their opinion in regard to the cause of action which might be alleged against the company, and for use in any such suit. The witness also testified that such reports in regard to the alleged injury to this plaintiff and the accident resulting therein had been filed with him and were in his possession and under his control until the present suit of Josephine Pace against the company was begun; and that two or three days after that suit was begun he forwarded the same to the company’s counsel. When asked if he could obtain them by requesting them of counsel, he answered, “Yes, of course.” When asked, “Will you do so?” he answered, “No, for the reason that they are privileged papers.” Also on the examination of said witness before said notary, he was asked:
    “Q. 3. On the seventeenth day of May, 1902, a woman fell or was thrown off a car belonging to The Cincinnati Traction Company, at or near the corner of Oak and Belmont streets, College Hill; who was the conductor in charge of this car ? ’ ’
    Also the following question:
    “Q. 5. Bo you know the name of this conductor?”
    Also the following question:
    “Q. 6. Do you know the name of the motorman of this car?”
    Also the following question:
    “Q. 7. Were there any other persons on this car besides the plaintiff, conductor and motorman?” Also the following question:
    “Q. 8. Were there any persons that you know of, besides the plaintiff, conductor and motorman present at the time of the accident and who witnessed it?”
    To each of the aforesaid questions the counsel for the defendant company objected, and the witness refused to answer the same upon the advice of counsel, for the reason that the same were immaterial, irrelevant and incompetent, and for the reason that these questions call for hearsay testimony.
    
      He was also asked the following question;
    “Q. Who was the division superintendent in May, 1902, of the division to which the College Hill-Main line belonged?”
    The witness refused to answer each and all of these questions under advice of counsel, and for the reasons aforesaid. Thereupon the said notary public ordered the plaintiff in error to be conunitted to jail until he should answer the said questions and produce the said reports.
    Plaintiff in error began these proceedings by an application in the court of common pleas of Hamilton county for a writ of habeas corpus. On the hearing in the court of common pleas, the court found the facts as stated above, and as matter of law adjudged that the commitment for refusal to answer the questions as to who was the division superintendent in May, 1902, and to produce the said reports, should be sustained. The motion for new trial was overruled, and the court rendered judgment that Schoepf be remanded to the custody of the sheriff until he should name the division superintendent of the College Hill-Main line in May, 1902, and should produce the said reports.
    The plaintiff in error filed his petition in error in the circuit court, together with the bill of exceptions and transcript of the proceedings in the court of common pleas; and in the circuit court the sheriff filed a cross-petition in error complaining of the judgment of the common pleas court that the witness was justified in his refusal to answer the five questions above stated. The circuit court held that these five questions should be answered, and ordered that Schoepf be remanded to the custody of the sheriff until lie should answer the question as to who was the division superintendent of the College Hill-Main line in May, 1902, and also the five questions above set forth, and also should produce the said reports. This judgment of the circuit court is here assigned for error, plaintiff in error seeking to have both the judgment of the circuit court and the judgment of the court of common pleas reversed and held for naught.
    
      Messrs. Kittredge & Wilby; Mr. Joseph Wilby; Mr. John W. Warrington; Mr. George H. Warring-ton; Messrs. Outcalt $ Foraker and Mr. Ellis G. Kinkead, for petitioner in error,
    cited and commented upon the following authorities:
    
      Collins v. Railway Co., 41 W. L. B., 101; Eade v. Jacobs, 3 Exch. Div., 335; Wigmore on Evidence, sec. 1856; Lyon v. Tweddell, 13 Ch. Div., 375; Benbow v. Low, 16 Ch. Div., 93; Rogers v. Trustees New York and Brooklyn Bridge, 42 N. Y. Supp., 1046 (11 App. Div., 141); Vicksburg Railroad Co. v. Putnam, 118 U. S., 545; Carroll v. Railway Co., 82 Ga., 452; Stephens Digest of the Law of Evidence (Am. ed., 1902), 98; In re Devala, 22 Ch. Div., 593; Cully v. Railway Co., 77 Pac. Rep., 202; Langhorn v. Allnut, 4 Taunt., 511; North Hudson, etc., Railway Co. v. May, 48 N. J. Law, 401; Bolton v. The Corporation of Liverpool, 1 Myl. & K., 88; Woolley Case, L. R. 4 C. P. 602; Anderson v. Bank, L. R. 2 Ch. Div., 644; Southwark Water Co. v. Quick, L. R. 3 Q. B. D., 315; In re Petition of Bradley, 71 N. H., 54; Taylor on Evidence, 1186; London & Tilbury Co. v. Kirk, 28 Sol. J., 688; Collins v. General Omnibus Co., 63 L. J. Q. B., 428 (s. c. 68 L. T., 831); 
      Knarston v. Insurance Co., 140 Cal., 57; Brady v. Railroad Co., 127 N. Y., 46; Patterson v. United Artisans, 43 Ore., 333; 2 Bacon on Benefit Societies, sec. 471; Meyer v. Insurance Co., 104 Cal., 381; Richards v. Gellatly, L. R. 7 C. P., 127; Marskell v. Railway Co., 7 T. L. R., 49.
    
      Mr. Oliver 8. Bryant and Mr. Charles B. Wilby, for defendant in error,
    cited and commented upon the following authorities:
    
      Shaw v. Ohio, etc., Co., 9 Dec. Re., 809; 17 W. L. B., 274; State v. Cost, 10 Dec. Re., 619; 22 W. L. B., 250; DeCamp v. Archibald, 50 Ohio St., 618; Ex parte Jennings, 60 Ohio St., 319; In re Rauh, 65 Ohio St., 128; Ex parte Munford, 57 Mo., 603; Ex parte Livingston, 12 Mo. App., 80; Ex parte McKee, 18 Mo., 599; Wigmore on Evidence, sec. 2210; Turnpike Co. v. Loomis, 32 N. Y., 127; In re Petition of Bradley, 71 N. H., 54; Earle v. Jacobs, 3 Exch. Div., 23; Low v. Tweddell, 13 Ch. Div., 375; Benbow v. Low, 16 Ch. Div., 93; Collins v. Railway Co., 41 W. L. B., 101; Woolley v. Railway Co., L. R. 4 C. P., 602; Parr v. Railway Co., 24 L. T. N. S., 558; Skinner v. Railway, L. R. 9 Ex., 298; Cook v. Tramway Co., 54 J. P., 263; Betts v. Railway Co., 12 Ont. Pr. Rep., 86; Anderson v. Bank, 2 Ch. Div., 644; 3 Taylor on Evidence, 1186; Kirkstall Co. v. Railway, L. R. 9 Q. B., 463; Thayer’s Prelim. Treatise on Evidence, 265; 2 Wharton on Evidence, sec. 1176; Packet Co. v. Clough, 87 U. S., 528; Vicksburg Railway Co. v. O’Brien, 119 U. S., 99; Knarston v. Insurance Co., 140 Cal., 57; 1 Dillon Municipal Corporations, sec. 305; Abbott’s Trial Evidence, sec. 62, p. 64; In re Devala Co., 22 Ch. Div., 593; Langhorn v. 
      Allnut, 4 Taunt, 511; Kahl v. Jansen, 4 Taunt., 565; Reyner v. Pearson, 4 Taunt, 662; Carroll v. Railway Co., 82 Ga., 452; Railway Co. v. Putnam, 118 U. S., 545; Carlton v. Railway Co., 81 Ga., 531; Cully v. Railway Co., 77 Pac. Rep., 202; Rogers v. Trustees of New York and Brooklyn Bridge, 11 App. Div., 141; Patterson v. United Artisans, 43 Ore., 333; Meyer v. Insurance Co., 104 Cal., 381; Hardy v. Boom Co., 52 Mich., 45; The Solway, L. R. 10 P. Div., 137; B. & O. Railway v. Campbell, 36 Ohio St., 647; Morse v. Railway, 72 Mass., 455; Lane v. Railway, 112 Mass., 455; Green v. Railway, 128 Mass., 221; secs. 5247, 5261, 5265 and 6566, Rev. Stat.
   Davis, J.

It is earnestly argued in behalf of the defendant in error, and that also seems to be the view entertained by the circuit court and the court of common pleas, that a witness who is testifying in a deposition before a notary public may be compelled to produce any document which by any possibility may become pertinent on the trial of the case in which the deposition is taken. It is asserted that In re Rauh, 65 Ohio St., 128, is authority for this proposition; and it is contended that the reports which had been made to the plaintiff in error, as the claim agent of the company, are admissions by the company, and that if the motorman and conductor who made these reports should testify on the trial, of the case, the company and its agents might be compelled to produce the reports for the possible purpose of contradiction. It is also asserted, although it is not even suggested how or why it might be so, that these reports may become evidence relating to the merits of the action and as such the company might be compelled to produce them for evidence or inspection. It is even seriously maintained that a party taking a deposition has a greater privilege under the law than he would have on the trial of his case, in that the witness must produce any document called for although he may believe that it is privileged, and in that the witness must answer impertinent and incompetent questions although he may believe that the answers would be privileged and although the answers would not be admissible if offered to the jury on the trial of the case. And here again it is claimed that the case of Rauh, supra, and other cases in this court and elsewhere, support this contention.

It was clearly pointed out in Ex parte Jennings, 60 Ohio St., 319, that neither the officer who takes a deposition nor the court on the trial of the case, has power to punish a witness for disobedience of a subpoena or a refusal to answer except when the witness has been “lawfully ordered.” Section 5252, Revised Statutes. And in that case and the Rauh case also it was said that when the witness undertakes to decide upon the question whether he has been “lawfully ordered” he does so at his own peril. It is the same whether a question of privilege is involved or whether it is only a matter of incompetent or irrelevant evidence. It is true that in the Rauh case the qualifying clause, “unless the interrogatory involves a question of privilege,” was thrown in. It would have been clearer if that clause had been omitted or if it had been said “a question of conceded privilege;” but it is plain that when the privilege claimed is disputed the witness takes- the same chances upon a refusal that he does upon a refusal to answer an incompetent question. Accordingly it was nowhere said in either of the decisions of this court already referred to, nor was it intended to he inferred, that a witness might be compelled to surrender to his adversary a coveted document, before the right to compel production of it had been submitted to the judgment of a competent tribunal; but the correlative proposition that a witness might take the chances of being sustained on a refusal to answer an incompetent or irrelevant question was distinctly asserted. It would seem, therefore, that the power of a notary public in the taking of depositions and the limitations imposed thereon have been clearly defined by the statutes and the previous decisions of this court.

The counsel for the defendant in error concede in their brief that questions 3, 5, 6, 7 and 8, which the witness refused to answer upon advice of counsel, because they were immaterial, irrelevant and incompetent and because they call for hearsay testimony, “would be inadmissible if offered to a jury on the trial of the case, because of the rule against hearsay.” Yet counsel still insist that the witness may be compelled by imprisonment to disclose facts which they admit could not be admissible on the trial. Prom what we have already said it results that the notary public had no such power. In Ex parte Jennings, it was said in the opinion, “Indeed it does not seem to have been finally determined in any case that the personal liberty of the citizen is of so little importance that it should yield to a desire to gather food for idle gossip. ’ ’ But in the present case this is all that such a fruitless extortion of testimony would result in, unless it would be to disclose to the plaintiff the names of witnesses for or against her adversary; and it is elementary that a party cannot be required to aid his opponent in that way. In answer to this it is urged that an objection to the relevancy or competency of evidence cannot be made by a mere witness, but it must come from a party to the action. However plausible this argument may seem, Ex parte Jennings conclusively shows that it is not universally sound. Besides, the witness in this case was an officer and representative of the defendant company, and it is through and by means of him that the plaintiff is here seeking to compel answers to questions and to compel the production of papers which are shown not to be in the possession or control of the witness, except constructively by virtue of his authority as an official of the defendant company. The common pleas court held that the witness was not in contempt for refusing to answer these questions and in this we think the judgment of that court was right.

Both the common pleas court and the circuit court held that the witness was in contempt for refusing to answer this question, viz.: “Who was the division superintendent in May, 1902, of the division to which the College Hill-Main line belonged?” The issues in the case of Josephine Pace v. Cincinnati Traction Company were made up more than two weeks before this deposition was taken. The petition and answer are a part of the record in this proceeding; and it does not appear that by any possibility the name of the division superintendent could be material or even relevant testimony. It is not alleged that the division superintendent was one of the agents of the defendant whose negligence in operating' the car resulted in the plaintiff’s injury, and if it were so alleged, it does not appear in the record that the names of the division superintendent, the conductor and motorman would add anything more to the proof of negligence by the company than proof of the names of passengers on the car or of other persons who were witnesses to the accident. So it seems that the only purpose of this inquiry, as of all of the others, was to compel the defendant in the suit to disclose before the trial the sources of its information in regard to the case and the names of its possible witnesses. Under the circumstances and under the issues as they stand the question was clearly incompetent and the order by the notary that the witness should answer it, as well as the commitment for refusal to answer it was not “lawfully ordered.”

But it is contended that if the question is not relevant now, it may become so by the time of the trial, because by that time the issues may be so changed that it may be vital. The witness has had no opportunity to judge of the relevancy of the question to such potential issues and he has not refused to answer it under any issue except as now made in the case. We apprehend that in this land personal liberty and security of property do not hang upon such a slender and precarious thread as counsel suggest

It was held in the case of Rauh, supra, that a notary public has power to punish a witness for contempt by imprisonment when the witness refuses to obey a subpoena duces tecum, directing him to bring with him any book, writing or other thing under his control, which, he may be compelled to produce as evidence. What may he be compelled to produce? And how may he be compelled to produce it? These questions are clearly answered by sections 5289 to 5298 inclusive, of the Revised Statutes. Section 5289 provides that the court may require the parties to an action “to produce books and writings in their possession or power which contain evidence pertinent to the issues, in cases and under circumstances where they might heretofore have been compelled to produce the same by the ordinary rules of proceeding in chancery.” The sections providing for inspections and copies of writings, for reference to a master and for action for discovery may be passed over as not material to the present discussion. Section 5289 limits the power to compel the production of books and writings, 1. To such as are pertinent to the issue and, 2. To cases and under circumstances where the parties might heretofore have been compelled to produce the same by the ordinary rules of proceeding in chancery. Under these limitations could the court compel the production of the reports which were made to this witness under the rules of his company and for the purpose stated?

The rule in chancery as to compelling the production of documents for the purposes of evidence and inspection is generally recognized and clearly defined. It is to the effect that a plaintiff is entitled to a discovery of such facts or documents in the defendant’s possession or under his control as are material and necessary to the plaintiff’s case; but that this right does not extend to a discovery of the manner in which the defendant’s case is to be established, nor to evidence which relates exclusively to the defendant’s case. This rule is also applied conversely, to the defendant in an action. Wigram on Discovery, Prop. III, secs. 342-347; Combe v. Loudon, 4 Y. & C., 139, 155; 6 Ency. Pl. & Prac., 791-792, 794, 795, 804-806. “It may be added that the principle of a bill of discovery was never considered to be applicable to third persons not parties so as to secure from them before trial a disclosure of possible evidence.” 3 Wigmore on Evidence, sec. 1856, p. 2427. One question here is whether the reports which were sent to the witness and which were by him turned over to the counsel for the,corporation, relate to the plaintiff’s case and are necessary and material in establishing her case. It lies upon the plaintiff to show this and we think that she has not done so. The efforts of the plaintiff appear to us to be directed toward “fishing” for the nature of the defense and the persons by whom it is to be established, rather than to obtain competent and necessary evidence to sustain the plaintiff’s petition.

Another question is, are the reports privileged? The statement of the witness that the reports were made in anticipation of a possible litigation and that they are in possession of counsel for use in the suit which did ensue stands uncontradicted and must therefore be taken as true. This clearly brings the documents within the rule as to privilege; and we see no reason to limit or modify the rule because the defendant is a corporation and obtained its information and made its memoranda for the purpose stated, through the usual agencies of a corporation. 23 Am. & Eng. Ency. Law (2 ed.), 99-100, notes 1, 2 and 3. Davenport v. Railroad Co., 166 Pa. St., 480; Carrol v. Railway Co., 82 Ga., 452; Cully v. Railway Co., 35 Wash., 241.

The plaintiff’s counsel argue with a great deal of earnestness that they have the right to extort the reports from the defendant for the purpose of using them as admissions against interest.' While it does not appear what the reports contain, nor whether they contain any statements which would make against the defendant on thé trial, it - is certain that the defendant has not made any statement to another which could be used.against it; for confidential communications between a principal and his agent are not admissions. In re Devala, 22 Ch. Div., 593.

We are of the opinion that the commitment of the witness for refusal to answer any of the questions, which he did refuse to answer, and for refusal to produce the reports was not “lawfully ordered;” and accordingly the judgments of the circuit court and the court of common pleas are reversed and the petitioner

Discharged.

Shauck, C. J., Price, Crew, Summers and Spear, JJ., concur.  