
    CONDUCTOR’S REPORTS AS EVIDENCE.
    [Circuit Court of Hamilton County.]
    In the Matter of the Application of J. H. Schoepf for Writ of Habeas Corpus, Ex Parte.
    
    Decided, July 1, 1905.
    
      Depositions — Witness Contumacious, When — Must Answer and Produce Papers — Questions as to Competency and Relevancy — Must Be Left for the Court — And are not a Basis for Refusal to Respond, Unless — Papers and Information Exclusively for the Defense — Habeas Corpus — Rotary Public.
    
    A witness called to give his deposition before a notary, public must respond to questions asked and produce papers or oooks called for, unless it clearly appear that by so doing he would be injured in his business or personally, or that the questions are frivolous, or that the information was procured or the papers called for were prepared exclusively for purposes of defense in an action by the party for whose benefit the deposition is being taken.
    
      Swing, J.; Jelke, J., and Giffen, J., concur.
    
      
       Affirming Ex Parte J. H. Schoepf, 3 N. P.—N. S., 93.
    
   Josephine Pace brought an action in the Court of Common Pleas of Hamilton.County against the Cincinnati Traction Company. While this action was pending she sought to take the deposition of J. H. Schoepf, an officer of said defendant company, before Charles E. Tenney, a notary public in and for said county. The witness appeared and was sworn, and was asked to give the name of the conductor in charge of the ear on which Mrs. Pace was injured. He ivas also asked whether he knew the name of the conductor of the same car; he was also asked whether there were any persons on the car other than the conductor and the motorman; he was also -asked whether there were any persons prsent at the time of the accident other than the conductor, the motorman, apd the plaintiff; he was also asked whether he had in his possession any books, letters, or other papers showing that there was present at the time of the accident, other than the plaintiff, the motorman, and the conductor, showing the names of the persons, if there were any such; he was also asked who was the superintendent of that portion of the line on which the accident occurred at the time of the accident.

All these .questions by direction of his counsel he refused to answer, and thereupon the notary ordered him to answer, and the witness refusing, the notary ordered him committed as for contempt.

This action was brought in the court of common pleas on habeas corpus for the discharge of Mr. Schoepf.

On the trial of the case in the court of common pleas, that court refused to discharge the prisoner and remanded him to the custody of the sheriff of Hamilton county until such lime as he shall answer the questions, who was the division superintendent in May, 1902, of the division to which the College Hill-Main street line belonged, and until he produced the reports which he had been asked to bring; to all of which the' prisoner excepted.

The first proposition of the syllabus in the case of DeCamp v. Archibald, 50 O. S., 618, is as follows:

“Where the question propounded involves no question of privilege on the part of the witness, it is his duty to answer, if ordered by the notary to do so. The question of its competency is a matter for the determination of the court on the trial of the action in which the evidence is taken; and if he refuses to do so, when ordered, he may be committed as a contumacious witness.”

The syllabus in the case of Ex Parte Malcolm, Jennings, 60 O. S., page 319, is as follows:

“A witness whose deposition is being taken before an officer may refuse to testify to facts not relevant to the issues in the case in which the deposition is to be read, if the disclosure of such irrelevant facts, would be injurious to the business of the witness ; and, if imprisoned by the officer for such refusal; he may be discharged on habeas corpus.”

The second proposition of the syllabus in Re Julian S. Rauh, 65 O. S., 128, is as follows:

“A subpoena issued by a notary public for a witness, to attend and testify in a deposition before the notary public may contain a clause directing the witness to bring with him any book, writing or other things under his control, which he may be compelled to produce as evidence, and for disobedience of such a subpoena the notary public has power to punish the witness for contempt, by imprisonment. ’ ’

It is not claimed in this case that the questions asked of the witness would tend in any way to injure him in his business or personally; neither is it claimed that the questions were frivolous. We think it was not clearly shown that the papers asked of the witness to be produced were made exclusively for the purpose of defense in the action against the company by Mrs. Pace. It probably is true that information received and papers prepared by a party or his agent in preparation for the suit should not be compelled to be given over to the opposite party, as it would seem that this would be an abuse of the power conferred by the statute to take depositions. Whether the questions are relevant or competent, can not be decided by the attorney or officer taking the deposition; such matters can only be passed upon by the court when the case is on trial; otherwise, the very purpose of the statute in authorizing the taking of depositions would be defeated.

Kittredge & Wilby, for plaintiff in error.

O. S. Bryant and C. B. Wilby, contra.

The notary public was right in ordering the witness to answer the questions and produce the reports called for.  