Appeal from the Circuit Court of Cook county; the Hon. HARRY
M. FISHER, Judge, presiding. Judgment reversed.
MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.
The defendant, Chicago Transit Authority, appeals from an order of the circuit court finding and adjudging it to be guilty of contempt of court and assessing a fine of $100 because of its failure to answer two certain interrogatories propounded by plaintiff. The order was entered in a suit filed by plaintiff who claimed damages for injuries sustained by her as a result of the alleged negligent operation of one of defendant's streetcars.
Eleven interrogatories were propounded, of which defendant answered nine, but declined to answer interrogatories Nos. 10 and 11, filing its objections thereto and moving that those interrogatories be stricken. The interrogatories were as follows: "No. 10. What are the names and addresses of all witnesses in possession of the defendant who were occurrence witnesses to plaintiff's injury as alleged in plaintiff's complaint? No. 11. What are the names and addresses of all persons in possession of the defendant who witnessed plaintiff's injured condition subsequent to the accident until she was removed from defendant's streetcar?"
Defendant having failed to answer these interrogatories, plaintiff moved for the entry of an order directing it to do so within ten days. Defendant failed to comply with the order and, accordingly, plaintiff filed a petition for a rule to show cause. The rule was entered, ordering defendant to show cause why it should not be adjudged guilty of and punished for contempt of court by reason of its failure to answer the interrogatories, as required by the court's order. Within the ten days defendant filed its sworn answer to the order to show cause, setting forth specific grounds in support of its refusal.
In her request that defendant answer the written interrogatories propounded by her, plaintiff relied on Supreme Court Rule 19 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 259.19; Jones Ill. Stats. Ann. 105.19], but she has apparently abandoned that basis of support, and on oral argument her counsel stated that she now relies on section 58 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 182; Jones Ill. Stats. Ann. 104.058] and on Rule 20 1/2 of the circuit court of Cook county.
The only statute applicable to the question presented is section 58 of the Civil Practice Act (Ill. Rev. Stats. 1953, ch. 110, par. 182). The first part of this section provides that whenever a bill for discovery, or interrogatories in a bill for relief, would heretofore have been available, the same discovery may hereafter be had by motion filed in the cause wherein the matter sought to be discovered would be used. Therefore the question presently arises whether a bill for discovery would have been available to obtain the names and addresses of the witnesses whom the adverse party intends to call. Dean Wigmore (in 6 Wigmore on Evidence, 3d Ed., 1940, sec. 1856, p. 422) states the scope and function of the bill of discovery as follows: "In chancery practice, a party to a suit at law has always been entitled, by a bill of discovery, to ascertain before trial the tenor of his opponent's knowledge and belief upon all the facts in issue in other words, to obtain disclosure of his testimony before trial. . . . But the tenor of this discovery was strictly limited to the opponent's own testimony, that is, his own admissions resting on his knowledge and belief. It is true that the bill required from the opponent an answer under oath stating all that he claimed in opposition; but to this extent what was obtained was no more than a sworn pleading, stating such material facts as would be alleged in any pleading. But of the evidence which he was to bring forth (except so far as he himself could testify) in support of those facts the names of his witnesses and the circumstances to which they would testify he was required to betray nothing in advance. In answering as a witness to facts, it was no excuse for him that his testimony would incidentally reveal his witnesses' names; but this did not impugn the general principle that he was entitled to keep to himself all evidential data except his own testimony."
An analysis of the principles thus stated shows that the remedy never included the right to a disclosure of the manner in which the other party's case would be established. The English cases have always regarded the remedy of discovery to be so limited. In re Strachan, 1 Ch. 439, the court observed that the applicant "wants to see how her opponent hopes to prove his case, and what she wants to see is the evidence he has procured to prove the insanity which he alleges and she disputes. In England it is considered contrary to the interest of justice to compel a litigant to disclose to his opponent before the trial the evidence to be adduced against him. It is considered that so to do would give undue advantages for cross-examination and lead to endless side-issues, and would enable witnesses to be tampered with and give unfair advantage to the unscrupulous."
In Carpenter v. Winn, 221 U.S. 533, the Supreme Court of the United States, lending support to the foregoing principles, observed that "a bill of discovery cannot be used merely for the purpose of enabling the plaintiff in such a bill to pry into the case of his adversary to learn its strength or weakness. A discovery sought upon suspicion, surmise or vague guesses is called a `fishing bill,' and will be dismissed. Story, Eq. Pl. §§ 320 to 325. Such a bill must seek only evidence which is material to the support of the complainant's own case, and prying into the nature of his adversary's case will not be tolerated. The principle is stated by a great authority upon equity thus: `Nor has a party a right to any discovery except of facts and deeds and writings necessary to his own title under which he claims; for he is not at liberty to pry into the title of the adverse party.' Story, Eq. Juris., § 1490; . . ."
In Ex parte Schoepf, 74 Ohio St. 1, 77 N.E. 276, the court held that the clearly defined rule in chancery applicable to discovery "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." These and other authorities cited by defendant indicate that the remedy of a bill for discovery never permitted disclosure of the manner in which the other party would establish his case and precluded obtaining the names of witnesses.
An examination of statutes which have permitted discovery by motion of that which was previously allowed by bill for discovery discloses that they do not permit obtaining the names of witnesses. Section 58 (1) of the Illinois act [Ill. Rev. Stats. 1953, ch. 110, § 182, subsec. (1); Jones Ill. Stats. Ann. 104.058, subsec. (1)] makes the remedy of bill for discovery available by motion rather than by separate action. The wording of this section shows that it deals only with the original remedy of bill for discovery, and the only change was to make that remedy available in a more convenient and modern form. Numerous other states have enacted similar statutes to make the remedy more convenient and usable. The transition by statute is aptly stated by Mr. Justice Cardozo in People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, as follows: "The common-law courts, till aided by statute, professed a lack of power, even in civil causes, to order the inspection of documents in advance of a trial, unless indeed the document to be examined was the very subject of the cause. . . . To give relief from these defects, the remedy of discovery and inspection was framed by courts of equity. 2 Story, Eq. Juris., § 1484. The remedy as framed involved a separate, if ancillary, suit, and in that respect as well as others was awkward and unwieldy. Statutes, long in force in this state, have made a like remedy available in the primary cause itself by motion or petition. This borrowing of equitable remedies began with the Revised Statutes of 1830 . . ."
Statutes such as section 58 (1) of the Practice Act have generally been held to be limited to the same type of relief allowed by bill of discovery; as Dean Wigmore (in 6 Wigmore on Evidence, 3d Ed., 1940, sec. 1856b, p. 433) states it: "In the interpretation of these statutes, it came to be often held that their purpose was merely to extend to all Courts the expedient that formerly existed in chancery alone . . . that therefore the principle is not changed, and that the discovery is limited to the extraction of the opponent's own testimony and cannot be asked merely to ascertain his other evidence to support his own case. So that the common law in this respect . . . remained unchanged for civil cases." These views were earlier expressed by Dean Wigmore in his 1904 edition. (3 Wigmore on Evidence, 1st Ed., 1904, sec. 1856, p. 2428.)
Defendant cites numerous cases involving statutes similar to section 58 (1) of the Illinois act wherein the courts refused to permit obtaining the names of witnesses. In State v. Broaddus, 245 Mo. 123, 149 S.W. 473, it was held that a notary had no power to compel an adverse party to tell the names of those persons he had learned the railway company intended to use or might use as witnesses, or who told him they witnessed the accident. In Montgomery Light & Traction Co. v. Harris, 197 Ala. 358, 72 So. 619, the interrogatories sought to obtain the names of witnesses of the opposite party, or its evidence. The court held that "such was not within statutory authority." In Watkins v. Cope, 84 N.J.L. 143, 86 A. 545, it was held that an interrogatory intended merely to obtain the names of witnesses whom the other party expected to call was not permissible. In Armstrong v. Portland Ry. Co., 52 Ore. 437, 97 P. 715, the court said that the statute providing for the deposition of a party to an action by the adverse party was intended to allow his examination only when the evidence sought is pertinent to the issue, and probably only when material and necessary to make out the case of the party calling him, but that "it cannot be used to compel the disclosure by an adversary of the names of his witnesses, the manner in which he expects to establish his case, or confidential reports or communications of his agents in relation to the matter in controversy."
New York followed this doctrine in McNamara v. New York State Rys., 220 N.Y. Supp. 522, saying that "the practice permits a plaintiff to examine his adversary as to matters material and necessary in the prosecution of his case (Civil Practice Act, § 288); but this language does not go to the extent of allowing a disclosure of a defense, either as to witnesses or their affidavits, or reports of employees of accidents or papers in preparation for trial."
Counsel for plaintiff say that no earlier precedent in Illinois has come to their attention, but the question incidentally arose in Yowell v. Hunter, 403 Ill. 202, where photographs were prepared by expert witnesses for trial, and the court was called upon to decide whether they could be obtained by the adverse party under Rule 17 [Ill. Rev. Stats. 1953, ch. 110, § 259.17; Jones Ill. Stats. Ann. 105.17]. The court held that even though the exception in Rule 17 does not specifically mention photographs, their production could not be compelled, and added that "under Rule 23A [Ill. Rev. Stats. 1953, ch. 110, § 259.23A; Jones Ill. Stats. Ann. 105.23(1)] the court could not require the parties to divulge the names of their expert witnesses and we do not ...