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LEONARD BROTHERS TRUCKING COMPANY, INC. v. CRYMES TRANSPORTS, INC.
45691.
Attachment. Gwinnett State Court. Before Judge Cheeley.
DEEN, Judge.
On a motion to permit the inspection and copying of certain business records of the opposing party, where it is made to appear that the sum which the plaintiff claims the defendant owes it should be capable of mathematical calculation by applying contract percentage rates to the total freight movements as shown by such records, that the documents sought to be inspected are within the possession of the adverse party and that plaintiff cannot obtain the information from any other source, it is not an abuse of discretion on the part of the trial court to order the production of such documents.
On December 15, 1969, the plaintiff Crymes Transports, Inc., entered into a contract with a nonresident contract carrier, the defendant Leonard Bros. Trucking Co., Inc., to furnish transportation services when called on by the latter under authority granted by the Interstate Commerce Commission. The fees are somewhat complex, depending on the number of drivers used, percentage of revenue, and in some cases mileage rates determined by the type of cargo hauled. The defendant had the right to withhold payments until receipt of delivery receipts, hills of lading, and other documents required by the ICC. Plaintiff was responsible for payment of fuel tax payments, license plates, road tax, equipment use and license fees, tolls and other specified expenses. There are provisions allowing the defendant to deduct from payments amounts owing it by plaintiff, and provisions for pro-rating refunds in the event of errors by defendant in assessing freight charges.
Plaintiff filed an attachment against certain of the defendant's equipment on April 6, 1970. From the declaration in attachment thereafter filed it appears that plaintiff seeks reimbursement for services performed by it during the contract and prior to March 1, 1970, a period at the most of two and a half months during which the agreement was in force.
Various defenses were filed, after which plaintiff filed a motion to compel the production of documents, the grant of which over the defendant's objections is the subject of this appeal.
1. The motion seeks production of "all shipping orders, manifests, bills of lading, cashier and/or auditor copies of freight bills, delivery receipts, verified copies of all state tax reports, all tariffs, all Section 22 tenders, and all canceled checks on payments made to plaintiff applicable to all shipments transported by plaintiff for the account of defendant during the period in which plaintiff acted as an independent contractor under contract with defendant." The materials requested are limited to documents "which defendant is required to maintain as evidence of service rendered to the public pursuant to the rules and regulations of the Interstate Commerce Commission and the Interstate Commerce Act," it refers only to transactions in which plaintiff moved freight for the defendant under the contract, that is, the very evidence from which the amount owing, if any, is to be ascertained by applying pertinent contract rate provisions, and it is limited in time to a period of not over two and a half months. Accordingly, the objection that the documents are not specified with sufficient particularity is not well taken.
38-2109 (a) and Rule 34 of the Federal Rules of Civil Procedure, the movant must show good cause for the production of the documents for examination. The appellant, citing Margeson v. Boston & Maine R., 16 FRD 200, points out that this means more than mere relevancy and competency, and should be something in the nature of special circumstances. The motion here is supported by the affidavit of the president of the plaintiff corporation in which he states (1) his personal knowledge that the documents sought exist, (2) that the defendant is required by regulations of the Interstate Commerce Commission to maintain them as evidence of service rendered to the public, (3) that plaintiff cannot obtain the information from any other source, and (4) lint the information sought is relevant to all shipments transported by plaintiff for defendant during the period of the contract. "What constitutes good cause is to a very large degree left to the judgment of the trial court." Atlantic C. L. R. Co. v. Gause, 116 Ga. App. 216, 224 (156 SE2d 476), citing Atlantic C. L. R. Co. v. Daugherty, 111 Ga. App. 144 (141 SE2d 112) and Sorrells v. Cole, 111 Ga. App. 136 (141 SE2d 193). As was stated in Guilford Nat. Bank v. Southern R. Co., 297 F2d 921, 925, in cases involving production of business records in the sole possession of the opposing party, "the actual record of figures and technical details of business transactions may well be indispensable because the necessary information cannot be satisfactorily discovered by interrogatories and depositions." This would seem to be particularly true where, as here, plaintiff's reimbursement depends in part at least upon applicable percentages of amounts received by the defendant on hauling contracts performed by the plaintiff and it would appear that the controversy might reduce itself even in a pre-trial hearing to a problem in addition. Ordinarily, the affidavit of the president of the plaintiff corporation that the information sought cannot be obtained from any other source plus the obvious implication from the facts of the case that the information sought would be a sufficient showing of good cause. "In the case of business records, this two factor test, relevancy plus need, often resolves itself into a question of simple relevancy, for the exclusive possession of the information through which the claim or defense must be established is so plain as to make the requirement of a showing little more than a requirement of a recitation." 4 Moore's Federal Practice, 34.08, pp. 34-72.
Judgment affirmed. Hall, P. J., and Evans, J., concur.
Frank D. Hall, for appellee.
Neil L. Heimanson, for appellant.
ARGUED OCTOBER 7, 1970 -- DECIDED MARCH 5, 1971.
Friday May 22 15:59 EDT


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