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Smithey v. Johnson Motor Lines

Decided: March 17, 1976.

LULU SMITHEY, PERSONALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF LEGRAND SMITHEY, PLAINTIFF-APPELLANT,
v.
THE JOHNSON MOTOR LINES, WILLIE CLARENCE SMITH, ET AL., DEFENDANTS-RESPONDENTS



Allcorn, Kole and Ard. The opinion of the court was delivered by Kole, J.A.D.

Kole

In this wrongful death action plaintiff obtained a $150,000 judgment.

During the discovery phase of the proceeding she made several motions to compel defendants to provide her with various materials, including copies or reprints of articles written by defendants' proposed expert Dr. Rolf W. Roley, together with all photographs made of the engine involved and the scene of the accident. Included in the resulting court orders was a requirement that Roley produce copies of any articles or papers asked for by plaintiff or photocopies thereof, and submit an affidavit concerning those articles and publications which were unavailable, and "if he does not have a copy * * * but knows the * * * publication in which the same appeared, he shall supply the date, full name and publisher and submit an affidavit that the balance of said articles are unavailable."

Defendants, contending that they complied with the court orders and searched for and supplied all of the available requested information, forwarded to plaintiff Roley's bill for services and expenses for $630. When plaintiff refused to pay it, a motion was made by defendants to obtain an order compelling payment. The motion was supported by an

affidavit of Roley, which stated the claimed expenses as "costs" to his company, to himself and to his staff as follows:

a. Rolf W. Roley, establishing location of materials and

outlining a search method for a staff search for old

publications and articles 80.00

b. Secretarial time, Daphne Lord, typing and reassem-

bling for copy purposes items which were located,

18.5 hours at 3.25 ...


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