Collins v. Yellow Cab Co.

• Decision Date: 02 April 1952
• Docket Number: No. 32795,32795
• Citation: 157 Ohio St. 311,105 N.E.2d 395,47 O.O. 186
• Parties: , 47 O.O. 186 COLLINS v. YELLOW CAB CO. et al.
• Court: Ohio Supreme Court

Page 311

157 Ohio St. 311

105 N.E.2d 395, 47 O.O. 186

COLLINS v. YELLOW CAB CO. et al.

No. 32795.

Supreme Court of Ohio.

Decided April 2, 1952.

Syllabus by the Court.

1. The provisions of Section 11348, General Code, authorizing a party to annex to his pleadings interrogatories pertinent to the issue made in the pleadings, and Section 11350, General Code, providing that 'answers to interrogatories may be enforced by an order of dismissal, judgment by default, or by attachment, as the justice of the case requires,' vest in the trial court authority to determine, on demurrer to such interrogatories, the pertinence thereof and discretion in the enforcement of answers thereto.

2. The overruling of a demurrer to interrogatories attached to a pleading is not a final order from which appeal may be taken on questions of law, in the absence of a showing that the order of the court overruling such demurrer constitutes an abuse of discretion.

Suit was brought in the Court of Common Pleas of Cuyahoga County by Katherine A. Collins against the Yellow Cab Company and one John Doe to recover damages for injuries the plaintiff claimed she suffered as a result of a collision of a Yellow cab, in which she was a passenger, with an automobile driven by an unknown person whom she designates John Doe. In her petition, plaintiff alleges that she was injured as the result of the negligence of both defendants and sets forth specifications of negligence and a claimed violation of a traffic ordinance of Cleveland.

The following interrogatories are attached to the petition:

'What is the name of the driver of the vehicle which collided with your Yellow cab on October 14, 1950, at the place and time stated in the foregoing petition?

'What is the address of the driver of the vehicle which collided with your Yellow cab on October 14, 1950, at the place and time stated in the foregoing petition?

'What is the license number of the vehicle which collided with your Yellow cab on October 14, 1950, at the place and time stated in the foregoing petition?'

On January 10, 1951, an answer was filed on behalf of the cab company, which after making certain factual admissions denies generally the allegations of the petition. On January 31, 1951, the cab company filed a demurrer to the interrogatories annexed to the petition on the ground that they are not pertinent to the issues made in the petition. The demurrer was overruled and the cab company excepted. The court gave the cab company leave to move or plead by March 24, 1951.

Thereafter, the cab company took an appeal to the Court of Appeals on questions of law from the order overruling the demurrer to the interrogatories.

A motion to dismiss the appeal was filed by the plaintiff on the ground that the Court of Appeals had no jurisdiction to hear the appeal because there is no final order in the Common Pleas Court.

The Court of Appeals granted the motion to dismiss 'for the reason that the overruling of a demurrer to interrogatories attached to the petition of plaintiff is not such a final order as may be reviewed on appeal on questions of law.'

The cause is before this court upon the allowance of a motion to certify the record of the Court of Appeals.

Simmons, Metzner, McNelly, Torbet & Vilas and George X. Mechir, all of Cleveland, for appellee.

Halle, Haber, Berick & McNulty, Cleveland, for appellant.

MATTHIAS, Judge.

The question presented is whether the order overruling a demurrer to interrogatories annexed to the petition is a final order.

It seems obvious that this appeal was prosecuted from an order of the court which in no manner finally disposed of the pending case. Answer was filed by the cab company, issues were made, and no entries have been made in the Court of Common Pleas which purport either to dismiss the petition of the plaintiff or to award a judgment against the cab company. The order of the Court of Common Pleas overruling the demurrer to the interrogatories, which constitutes the claimed 'final order' on which this appeal is predicated, does not provide a penalty for failure to answer the interrogatories attached to the petition.

The nature of the order made by the Court of Common Pleas becomes clear when we consider the statutory provisions regarding interrogatories, which were invoked by the parties hereto. These sections are as follows:

Section 11348. 'A party may annex to his pleading, other than a demurrer, interrogatories, pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath, by the party to whom they are propounded, or if such party is a corporation, by the president, secretary, or other officer thereof, as the party propounding requires.'

Section 11350. 'Answers to interrogatories may be enforced by an order of dismissal, judgment by default, or by attachment, as the justice of the case requires. On the trial, such answers, so far as they contain competent testimony on the issue or issues made, may be used by either party.'

It does not appear from this record that the Court of Common Pleas exercised its authority under Section 11350, General Code, to enforce answers. If it had applied this section we would have before us an 'order of dismissal, judgment by default, or * * * attachment'. Without question any such order or judgment would be appealable.

It has long been the law of this state that the overruling or sustaining of a demurrer to a pleading, which...