HOLM v. SUPERIOR COURT OF STATE IN AND FOR CITY COUNTY OF SAN FRANCISCO (1954)

The petition for rehearing herein calls attention to the fact that the record does not disclose that the photographs in question were taken by an agent of the city. This is correct. The record does not disclose by whom the photographs were taken. It is alleged in the affidavits that the photographs were in the possession of counsel for the city but there is no showing whatsoever that the photographs were taken by any one on behalf of the city or that they were acquired by the city in contemplation of litigation arising out of the accident here involved. Since the burden was on the petitioner here to show that the photographs were privileged, it is clear that he failed to make such showing. The majority opinion is therefore based upon the erroneous assumption that the photographs were taken by an agent of the city.

Since the decision in this case was filed my attention has been called to several authorities which support the ruling of the trial court here but which were not cited in any of the briefs. These authorities are Morehouse v. Morehouse, 136 Cal. 332, 68 P. 976, Freel v. Market St. Cable Ry. Co., 97 Cal. 40, 31 P. 730, Hirshfeld v. Dana, 193 Cal. 142, 223 P. 451, Cordi v. Garcia, 39 Cal.App.2d 189, 102 P.2d 820. None of these authorities is cited in either the majority or dissenting opinions and were not considered by the court in the decision of this case.

In McKinley v. Southern Pacific Co., 80 Cal.App.2d 301, 314, 181 P.2d 899, 908, the court said: ‘The next contention of appellants Southern Pacific Company and its employees is that the trial court erred in granting respondents' motion to compel said appellants to produce written reports of the accident made by appellants Ahlborn and Shafer (the engineer and fireman) to their superior. Upon cross-examination of said appellants repondents brought out the fact that they had made written reports to B. E. Stone, their superior, and counsel for respondents thereupon demanded said statements and moved the court for an order requiring appellants to produce them, which motion was granted by the court over the objection of said appellants. Appellants concede that no prejudice resulted to them from said ruling but urge that it is a question of some importance and should be determined by this court. * * *

‘In Morehouse v. Morehouse, 136 Cal. 332, 337, 68 P. 976, 978, the court, quoting from Ex parte Clarke, 126 Cal. 235, 239. 58 P. 546, 46 L.R.A. 835, 77 Am.St.Rep. 176, said: ‘When a witness is in court * * * and discloses the fact that he has a paper, document, or book which would be evidence in favor of the party desiring it, he may, in a proper case be rightfully ordered to produce it.’ See, also, Freel v. Market St. Cable Ry. Co., 97 Cal. 40, 44, 31 P. 730; Hirshfeld v. Dana, 193 Cal. 142, 153, 223 P. 451; Cordi v. Garcia, 39 Cal.App.2d 189, 196, 102 P.2d 820. And in the latter case the court, after citing Morehouse v. Morehouse, supra, said that the right of defendants' attorney to inspect and use letters in question for impeachment purposes might have been properly granted.

‘Appellants assert that no showing was made in this case that anything in the requested statements was material to the issues in the instant case, but it is difficult to understand how written reports by the engineer and the fireman to their superior as to the details of the accident could fail to be material. Where the engineer and fireman were witnesses and testified as to such details, and in the course of such testimony stated that they had made such written reports, it was, in our opinion, clearly proper for the trial court to grant respondents' motion to order appellants to produce said statements for respondents' use in further cross-examination. If there were statements in said reports inconsistent with the testimony of the witnesses, respondents were entitled to use them for impeachment purposes, and if there were no inconsistent statements in said reports, no possible injury could result to appellants. A trial court must be depended upon to exercise a wise discretion in such matters to protect a party from any unncessary disclosure to others of the contents of his private books, papers and records, but no party has a right to refuse to produce any report or document which may have a bearing upon the facts of the pending litigation.’

The decision in the McKinley case was rendered June 12, 1947, and a hearing was denied by this court on August 7, 1947. I respectfully submit that the majority holding in the case at bar is in direct conflict with all of the above cited authorities.