Di Pietruntonio v. Superior Court In and For Maricopa County, 6676

• Court: Supreme Court of Arizona
• Citation: 327 P.2d 746,84 Ariz. 291
• Docket Number: No. 6676,6676
• Parties: Livio DI PIETRUNTONIO, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR COUNTY OF MARICOPA and The Honorable Lorna Lockwood, one of the Judges thereof, Respondent.
• Decision Date: 02 July 1958

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327 P.2d 746 84 Ariz. 291 Livio DI PIETRUNTONIO, Petitioner,
v.
The SUPERIOR COURT of the State of Arizona IN AND FOR COUNTY OF MARICOPA and The Honorable Lorna Lockwood, one of the Judges thereof, Respondent. No. 6676. Supreme Court of Arizona. July 2, 1958.

[84 Ariz. 292] Lewis, Roca, Scoville & Beauchamp, Phoenix, by John P. Frank, Phoenix, and Walter Linton, by Nathan Holt, Phoenix, for petitioner.

Langerman & Begam, Phoenix, for respondent.

PHELPS, Justice.

This matter comes to us on an original writ of prohibition directed against respondent, The Honorable Lorna Lockwood. The facts upon which the writ is based are those in the case of Susan Bronk, Plaintiff, v. Livio Di Pietruntonio, defendant. Plaintiff is seeking damages from defendant for personal injuries alleged to have been sustained by her as the result of an automobile accident involving defendant and his pickup truck.

Pursuant to Rule 33, Rules of Civil Procedure, 16 A.R.S., plaintiff requested the defendant, petitioner herein, to answer the following interrogatories:

(1) 'Did you on November 18, 1957, at approximately 6:45 p. m. have an automobile insurance policy covering the 1957 Chevrolet pickup in which you were involved in an accident at said time?

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(2) 'If your answer to the first interrogatory is in the affirmative, please state the name of the insurance carrier.

[84 Ariz. 293] (3) 'If your answer to the first interrogatory is in the affirmative, please state whether or not the said automobile insurance, at the said time included bodily injury coverage.

(4) 'If your answer to the third interrogatory is in the affirmative, please state the limits of bodily injury coverage of the said insurance policy at the said time.'

Thereafter timely objections were made to the foregoing interrogatories by petitioner upon the grounds that the information sought therein was 'immaterial, irrelevant and outside of all lawful issues in said cause.' After hearing thereon, and at the conclusion thereof, respondent ordered petitioner to answer the questions contained in the interrogatories. It is the position of petitioner that the Honorable Lorna Lockwood was without lawful authority to make such an order and that in doing so she exceeded the jurisdiction of the court over which she presided. Thereupon, petitioner instituted these proceedings for writ of prohibition. There is no question but that prohibition is a proper remedy to test the jurisdiction of the lower court in a case of this kind.

Rule 33, Rules of Civil Procedure, authorizes a party litigant to employ the use of interrogatories as a means of discovery, subject to the limitations upon their use by the provisions of Rule 26(b) thereof which reads as follows:

'Scope of examination. Unless otherwise ordered by the court as provided by Rule 30(c) or (e), the deponent may be examined regarding any matter, nor privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.'

The precise question presented to us as stated by petitioner in his brief is: whether in the ordinary automobile accident case the discovery process may be used to compel a defendant to reveal to a plaintiff the extent and nature of the insurance coverage of the defendant. It appears to be the universal rule that in order to comply with the purpose of the rules they should be given a liberal construction. McNelley v. Perry, D.C., E.D.Tenn.1955, 18 F.R.D. 360.

[84 Ariz. 294] This question has been before a number of federal district courts resulting in conflicting results. A federal district court in New York in Orgel v. McCurdy, D.C., S.D.N.Y.1948, 8 F.R.D. 585, and a federal district court in Tennessee in Brackett v. Woodall Food Products, Inc., D.C., E.D.Tenn.1951, 12 F.R.D. 4, 5, both required defendant to disclose information concerning liability insurance carried by defendant. The district judge in New York based his decision upon the ground that 'it may be generally relevant' which seems to be a more or less nebulous reason. To say that a thing may be generally relevant implies with equal weight that it may not be relevant.

The language of Rule 26(b) requires that it shall be relevant to the subject matter involved in the pending action in order to authorize its production. It does not authorize such discovery if perchance it may be relevant. If its disclosure would be 'reasonably calculated to lead to the discovery of admissible evidence', it would be sufficiently relevant to require its disclosure, but, with due respect to the district judge in the New York case, we do not believe the above-quoted phrase used by him is sufficient ground upon which to rest his decision. The decision of the federal

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district court in the Brackett case, supra, is based, in part, upon the ground that the Tennessee legislature in 1951 passed a law requiring all operators of motor vehicles under certain circumstances to 'show financial responsibility' which is defined as requiring specified minimum limits of liability in insurance policies. The court concluded from the tenor and purpose of such legislation that such insurance policies '* * * are definitely relevant to the subject matter of the pending actions growing out of accidents covered by such policies * * *.'

On the other hand, a federal district court in Pennsylvania in McClure v. Boeger, D.C., E.D.Pa.1952, 105 F.Supp. 612, and a federal district court in McNelley v. Perry, supra, refused...