ORIGINAL PETITION for mandamus.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 19, 1957.
This is an original petition for mandamus on relation of Alveston Terry, the defendant in a personal injury suit pending in the circuit court of Cook County before the Honorable Harry M. Fisher, respondent herein, to compel respondent to expunge from the record of the record of the personal injury cause certain orders requiring petitioner to answer discovery interrogatories respecting the existence and amount of his liability insurance.
The cause presents the single issue of whether, under the Civil Practice Act and Rules promulgated pursuant thereto, a defendant can be compelled to answer discovery interrogatories respecting the existence and amount of any liability insurance.
Petitioner contends that the circuit court exceeded its authority under the Civil Practice Act and Rules in requiring petitioner to respond to the said interrogatories, and that mandamus should issue to compel the respondent to expunge the void orders. Respondent, however, argues that the orders are within the scope of the Rules and constitute a proper part of the record.
The relevant section of the Civil Practice Act, section 58(1), (Ill. Rev. Stat. 1955, chap. 110, par. 58(1),) provides that, "Discovery, admissions of fact and of genuineness of documents and answers to interrogatories shall be in accordance with rules." Supreme Court Rule 19-11, relating to interrogatories, provides that they may be served within the same time and under the same circumstances as depositions may be taken, and Rule 19-4 defines the scope of examination on deposition. This latter Rule provides: "Upon a discovery deposition, the deponent may be examined regarding any matter, not privileged, relating to the merits of the matter in litigation, whether it relates to the claim or defense of the examining party or of any other party, including the existence, description, nature, custody, condition and location of any documents or tangible things and the identity and location of persons having knowledge of relevant facts."
With reference to the particular interrogatories involved herein, since the Illinois courts have not yet determined whether the existence and amount of defendant's insurance is discoverable under our Rules, a chronological review of the decisions and reasoning of the courts of other jurisdictions on this issue may be helpful.
In Goheen v. Goheen, 9 N.J. Misc. 507, 154 A. 393, the first case presenting this question, the New Jersey court, in 1933, without reference to any practice act, denied such interrogatories on the ground that they did not constitute material and competent evidence. In 1933 the Michigan court in Layton v. Cregan & Mallory Co. 263 Mich. 30, 248 N.W. 539, held that plaintiff was entitled to the production of defendant's insurance policy, since it might be relevant to the issue of disputed ownership of the automobile which collided with plaintiff's car. The court neither discussed the Goheen case, nor any rule of civil practice.
The California court in 1937, in Demaree v. Superior Court, 10 Cal.2d 99, 73 P.2d 605, held that the provisions of defendant's insurance policy were germane to the petitioner's cause and material to their anticipated action against the insurance company "when and if brought," and that a sufficient basis was laid for the request for such information in the proceeding to perpetuate testimony.
In 1948 a Federal court in New York, in Orgel v. McCurdy, 8 F.R.D. 585, held that under Federal Rule 26(b) plaintiff could examine defendant before trial on the matter of liability insurance, since it was not necessary to establish the admissibility of the testimony, but only that the information was relevant to the subject matter of the pending action. Rule 26(b) provides: "* * * deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence."
The Orgel case was cited by the Federal district court in Tennessee in 1951 in Brackett v. Woodall Products, Inc., 12 F.R.D. 4, where it was held that plaintiff could examine defendant's liability insurance policy under Federal Rules 34 and 26(b), on the ground that from the tenor and purpose of Federal and State legislation affecting liability insurance for the benefit of injured persons, such policies are relevant to the subject matter of pending actions growing out of accidents. The court stated: "The court finds that it is material to the plaintiffs in the preparation of their cases for trial that they be given an opportunity to inspect, and, if desired to copy, the liability insurance policy, as the policy provisions may afford the plaintiffs a right of which they would otherwise not be able to avail themselves."
However, the following year, 1952, the Federal district court in Pennsylvania, disagreed with the interpretation of the Federal Rules in the Brackett case, and held that, although information need not be admissible in evidence to be discoverable, nevertheless, the insurance information could not be elicited on the ground that whatever advantage plaintiff might gain from the discovery of insurance had nothing to do with the presentation of the case at trial. (McClure v. Boeger, 105 F. Supp. 12.) The court stated: "Every argument that could be made in favor of requiring the disclosure could also be made in favor of compelling defendant in any civil case to furnish plaintiff with full information as to his financial resources."
The same result was decreed by the Federal court in 1955 in McNelley v. Perry, 18 F.R.D. 360, where it was reasoned that since the insurance interrogatories could not be used in the trial, or lead to information which could be used in the trial, they were not proper.
Conflicting conclusions are also apparent in the State court decisions between 1951 and 1957. The California court in 1951, in Superior Ins. Co. v. Superior Court, 37 Cal.2d 749, 235 P.2d 833, reaffirmed its prior decision in the Demaree case, permitting plaintiff to elicit from defendant data ...