Sloss-Sheffield Steel & Iron Co. v. Maryland Casualty Co. , 167 Ala. 557 ( 1910 )

MAYFIELD, J.

Appellee, a casualty insurance company, had a contract of insurance with the appellant by which it insured appellant against loss or liability to its employees, and the premiums of these insuranee policies were based upon the number of employees engaged by appellant] and by which it was provided that appellee insurance company should have the right at all reasonable times to inspect the books of the appellant corporation, so far as they related to the number of the employees and to the wages paid. Said contract contained also the provision “that, if the wages actually paid during said period should exceed the sum stated in said estimate, the assured should pay the additional premium earned by reason of such excess.” The bill is; to obtain and require an inspection of the books of appellant company in so far as they relate to the wages of its employees covered by the contracts of insurance, and an order for an accounting to ascertain the premiums to be paid under the contracts of insurance, in accordance with the provisions of the insurance policies. The bill alleges a failure and refusal on the part of respondent to comply with the contract, as to the inspection of the books, and other provisions. The respondent demurred to the bill, assigning various grounds. The court overruled the demurrers, and from that decree this appeal is prosecuted.

The bill certainly contains equity; no other adequate relief is availing. The information necessary to the stating of the account is exclusively with respondent, and can be had in no other way than by the production of its books, which it contracted to produce for inspection, and which are shown to be the sole repository of the information necessary to state the account, or to ascertain the exact amount of the premiums due. The bill is not one for discovery only, and therefore it was not necessary that it be sworn to.—Bromberg v. Bates, 98 Ala. 629, 13 South. 557.

It was said by Chief Justice Marshall, in the case of Russell v. Clark, 7 Cranch, 69, 3 L. Ed. 271: “That if certain facts, essential to the merits of a claim purely legal, he exclusively within the knowledge of the party against whom that claim is asserted, he may be required, in a court of chancery, to disclose those facts; and the court, being thus rightly in possession of the cause, will proceed to determine the whole matter in controversy.” But this rule is of course subject to the limitation that the discovery cannot be used as a mere pretext for bringing a common-law action in a court of chancery; and if the discovery fails, the suit should be dismissed. This court has spoken as follows with regard to this rule: “While the foregoing has been distinctively called the American doctrine, the best-considered cases do not regard discovery as the independent source of equitable jurisdiction to grant relief, in respect to a matter of purely legal cognizance, in a suit for discovery and relief. In such suit, the discovery is incidental, and may be the occasion for the exercise of the jurisdiction.” — Va. & Ala., etc., Co. v. Hale, 93 Ala. 545, 9 South. 256.

Mr. Pomeroy, speaking of the same rule, which he calls the American doctrine, says : “Tlie so-called American doctrine concerning the effect of discovery upon the equitable jurisdiction is thus practically as follows : Whenever in a controversy purely legal, depending upon legal interests and primary rights of the plaintiff, and seeking to obtain final reliefs Avhich are Avholly legal, the plaintiff prays for a discovery as a preliminary relief, and alleges and proves that such discovery is absolutely essential to the maintenance of his contention — that he is utterly unable to establish the issues on his part'by testimony of witnesses, or by any other kind of evidence admissible in courts of laAV — so that an action at law is utterly impracticable, then the court of equity, having jurisdiction of such a case to compel a. discovery, acquires a jurisdiction over it for all purposes, and may go on and determine all the issues, and decree full and final relief, although the relief, so given is of the same Lind as that granted by the courts of law in similar controversies.”

The jurisdiction of chancery for' discovery is not affected by the statutory discovery by interrogatories to. the adverse party; that remedy is only cumulative.

It seems that the real source of equity jurisdiction, in cases like this, is the inadequacy of legal remedies when discovery or production and examination of books is necessary.

The following quoted maxims and propositions tend to show the equity of the bill under our chancery practice: The common law laid down as a maxim “Nemó tenetur armare adversarium suum contra se;” in furtherance of which principle it generally allowed litigant parties to conceal from each other, up to the time of trial, the evidence on which- they meant to rely, and would not compel either of them to supply the other with any evidence, parol or otherwise, to assist him in the- conduct of his cause. — Best on Evidence, § 624; 1 Greenleaf on Evidence, § 329. A different rule grew up in equity. The defendant there was obliged to answer under oath the allegations of the bill, and might be compelled to produce for inspection by the’plaintiff documents that were in the defendant’s possession and control and* were material to the issues involved in the suit. In such cases the discovery was incident to the equitable relief sought. But it was not limited to the issues arising in suits in equity. “Many cases existed in which the plaintiff had a legal title, or legal right, or was pursuing a legal remedy, but wherein no redress could be actually obtained, simply because the plaintiff’s evidence either rested in the breast of the defendant, or consisted, in whole or in part, of documents in the defendant’s possession. Hence, there was a failure of justice at common law, and hence there arose the equitable remedy of bills for discovery, which was made use of simply for the purpose of assisting, or supplementing the plaintiff’s remedy at common law.” — Bispham’s Equity (6th Ed.) § 557; 2 Story’s Equity Jurisprudence, §§ 1484, 1485; 1 Pomeroy’s Equity Jurisprudence, § § 191, 195. The law excepted from the testimony, which a party might be compelled to furnish against himself in this way, testimony tending to convict him of a violation of the criminal law, or to subject him to a penalty or forfeiture; also communications between him and his attorney relating to the matters in suit, and, of a public officer, testimony a publication of which would be prejudicial to the community. With these exceptions, a party could be compelled “to discover and set forth upon oath every fact and circumstance within his knowledge, information, or belief,” and to produce and allow his adversary to inspect and copy every document in the party’s possession material to the other’s case. — Adams’ Equity, c. 1.

The same principles govern in the practice as to discovery, whether it be invoked in aid of other issues involved in the suit in equity, or be invoked independently in aid of an action at law. — Lyell v. Kennedy, L. R. 8 App. Cas. 217; Drake v. Drake, 3 Hare, 525; Wigram’s Points on the Law of Discovery, 123.

It is urged that the bill does not sufficiently allege that complainant has complied with the laws of this state as to the right of foreign corporations to do business here. The bill alleges, among other things, “that at the time of making and entering into said contract, and continuously since that time, and at the time of the filing of this suit, it has been duly qualified to transact business in the state of Alabama in accordance with the statute of this state prescribing the terms and conditions upon which a foreign corporation may do business in Alabama.” This, we think, is sufficient.

The bill contains equity, and was not subject to the demurrer interposed, and the decree of the chancellor is affirmed.

Affirmed.

Simpson, Anderson, and Sayre, JJ., concur.