Garrity v. Kemper Motor Sales, 40456

• Decision Date: 03 May 1968
• Docket Number: No. 40456,40456
• Citation: 159 N.W.2d 103,280 Minn. 202
• Parties: Thomas P. GARRITY, Appellant, v. KEMPER MOTOR SALES, et al., Defendants, Chrysler Motors Corporation, Respondent.
• Court: Minnesota Supreme Court

Page 103

159 N.W.2d 103

280 Minn. 202

Thomas P. GARRITY, Appellant, v. KEMPER MOTOR SALES, et al., Defendants, Chrysler Motors Corporation, Respondent.

No. 40456.

Supreme Court of Minnesota.

May 3, 1968.

Syllabus by the Court

1. When written interrogatories are served, the party served is under an obligation to respond by either answering the interrogatories to the extent his knowledge permits or declaring his lack of knowledge, or by making objections to the questions propounded. He may not by failing to answer attempt to shift the burden upon the interrogating party to seek a court order compelling answers without violating the rules and subjecting himself to the sanctions in Rule 37, Rules of Civil Procedure.

2. For a failure to answer to be willful within the meaning of Rule 37.04, it is necessary that there be a knowing awareness of the duty imposed by the rules to answer the questions propounded and, in spite of this awareness, a deliberate, conscious, and intentional choice to disregard this duty. The failure to answer must be such that it can only indicate an unmistakable challenge to the authority of the rules or the lack of any substantial merit to the claim made.

3. While the proponent has no duty to make a Rule 37.01 motion to compel answers upon a refusal to answer, he should do so if it would be in furtherance of securing the information needed for his claim or defense and should not seek the imposition of the sanction of a dismissal on the merits where it is apparent that the failure to answer was not willful within the meaning of the rule.

4. Rule 37.04 does not confer authority on the court to award costs and attorney's fees.

Stanley J. Mosio, St. Paul, for appellant.

Faegre & Benson and Lawrence C. Brown, Minneapolis, for respondent.

OPINION

ROGOSHESKE, Justice.

Appeal from a judgment dismissing plaintiff's action against defendant Chrysler Motors Corporation.

Plaintiff's action was dismissed upon a motion pursuant to Rule 37.04, Rules of Civil Procedure, and defendant was awarded $50 in 'costs and attorneys' fees' for plaintiff's 'wilful' failure to answer a set of five interrogatories served upon him. The issues raised are: (1) Was the evidence sufficient to establish the fact that plaintiff had willfully failed to answer the interrogatories? (2) Did the court have the authority to award costs and attorneys' fees under Rule 37.04?

In November 1962, plaintiff, Thomas Garrity, bought a new 1963 Plymouth from defendant Kemper Motor Sales. The automobile was covered by a new-vehicle warranty agreeing to repair or replace defective parts during 12,000 miles or 12 months of operation. Plaintiff had mechanical trouble with the automobile almost from the beginning. By January 1963, the automobile had broken down three times. Twice defendant Kemper had repaired it under the warranty, but the third time it refused, saying that it must be plaintiff's fault that the car had broken down. Therefore, in November 1963, plaintiff brought an action on the warranty against both Kemper and Chrsyler Motors Corporation. On May 20, 1964, plaintiff was deposed by defendant Chrysler. A pretrial conference was held in May 1965, at which time the advisability of amending the complaint to include a claim of negligent repair was discussed. An order granting plaintiff's motion to make such an amendment was issued June 24, 1965, and he served an amended complaint alleging negligence against both defendants. A week later, defendant Chrysler served five interrogatories upon plaintiff:

'1. State in detail and not in summary fashion all facts upon which plaintiff relies to support its allegation contained in paragraph I of plaintiff's alleged second cause of action that Kemper Motor Sales was an agent of Chrysler Motors Corporation.

'2. State in detail and not in summary fashion with respect to all repairs to the automobile in question which plaintiff claims were made negligently and carelessly the following:

'(a) The date or dates on which the allegedly negligent repair or repairs were made.

'(b) By whom said allegedly negligent repairs were made.

'(c) Specifically what allegedly negligent repairs were made.

'3. State in detail and not in summary fashion all facts upon which plaintiff relies to support his allegation contained in paragraph III of the second cause of action that repairs were made negligently and carelessly.

'4. List all repairs, by whom made, and the dates of the repairs to the automobile in question, which were made by anyone not a party to this lawsuit.

'5. State where the automobile in question is presently located and whether it may be inspected by Chrysler Motors Corporation without the necessity of a Rule 34 motion.'

In October 1965, defendant Chrysler sent a reminder to plaintiff's attorney that the five interrogatories had not been answered. Plaintiff's attorney did not respond. On February 4, 1966, the parties received a trial notice advising that the case had been set for the trial week of February 21, 1966. ¹ On February 7, 1966, defendant Chrysler wrote plaintiff's attorney calling attention to the trial notice and again requested answers to the interrogatories, warning that a dismissal would be sought if they were not forthcoming. The next day, plaintiff's attorney replied by letter that he felt defendant had already obtained the answers to these questions from the deposition and that if any additional information was desired the defendant need only point out what it wanted to know and it would be supplied expeditiously. Upon receiving this letter, defendant Chrysler replied with a demand for full answers to all five interrogatories. In addition, at the request of plaintiff's counsel, another copy of these interrogatories was sent.

On February 15, 1966, plaintiff gave notice for the taking of a deposition of defendant Chrysler. Said defendant refused to attend, and plaintiff moved for an order compelling defendant to be deposed. Defendant countermoved for a dismissal with prejudice under Rule 37.04 and for $50 attorneys' fees. Plaintiff's motion was denied, but defendant's motion was granted. On March 7, 1966, the district court entered its order dismissing plaintiff's action on the merits as to defendant Chrysler upon the ground that 'plaintiff's failure to answer (Chrysler's) set of five interrogatories * * * has been wilful.' Since no affidavit gives support to the claim of willfulness, the dismissal was ordered solely upon the inferences to be drawn from the long delay and plaintiff's failure to answer.

The record does not adequately disclose the reasons why plaintiff's attorney did not have him answer the interrogatories. The only indication can be found in his letter of February 8, 1966, wherein he stated that he felt all of the questions had been answered by the deposition. However, the reasons why the interrogatories had not been answered were brought out in the oral arguments. First, plaintiff's attorney considered it unnecessary for them to be answered because he felt that defendant already had the information which any answers to the questions were designed to disclose. Second, plaintiff did not possess the information necessary to answer the questions. In fact, plaintiff's attorney claimed that the purpose for attempting to depose defendant in February 1966 was to obtain the information...