Dollar v. Long Mfg., N. C., Inc.
| Citation | 561 F.2d 613 |
| Decision Date | 21 October 1977 |
| Docket Number | No. 76-1018,76-1018 |
| Parties | 2 Fed. R. Evid. Serv. 760 Sarah Helen Williams DOLLAR, Plaintiff-Appellant, v. LONG MFG., N. C., INC., Defendant and Third-Party Plaintiff-Appellee, v. NICHOLS TRACTOR COMPANY, INC., Third-Party Defendant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Harry Jay Altman, II, Thomasville, Ga., for plaintiff-appellant.
B. L. Weinberg, Jr., John H. Stanford, Jr., Atlanta, Ga., for defendant and third-party plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before TUTTLE, MORGAN and HILL, Circuit Judges.
This is a diversity action, arising in Georgia, alleging wrongful death. Plaintiff-appellant Sarah Dollar appeals from a directed verdict and judgment entered against her in this products liability action for the death of her son, James Dollar. He was killed while operating a backhoe designed, manufactured and marketed by the defendant-appellee Long Manufacturing Company (Long). Defendant made the tractor dealer, Nichols Tractor Company, Inc., (Nichols) a third party defendant, seeking contribution or indemnity in the event of plaintiff's recovery.
The correctness of certain discovery and evidentiary rulings in the trial court prior to and during trial are the issues presented for decision. We reverse.
James Dollar, plaintiff's son, was an employee of the Decatur County, Georgia, government. On June 13, 1972, he was assigned to dig for and locate a water main in a local industrial park. He was to use a Long Model 1200 backhoe, a farming and industrial implement particularly suited for such a task. The backhoe was attached to a John Deere tractor equipped with a three point hitch. By activation of a control lever on the tractor, the three point hitch could be raised or lowered thereby raising or lowering the implement attached to the hitch. A canopy rollbar had been affixed to the tractor.
While digging to locate the water line on the morning of June 13th, James Dollar was killed when he was crushed between the control panel of the backhoe and the rollbar canopy of the tractor.
The plaintiff's son died before anyone arrived at the scene, and there were no eyewitnesses to the occurrence. The critical issue in the case became the cause of the backhoe's lifting off the ground causing the operator to be crushed between his control panel and the tractor's rollbar.
The plaintiff contended, inter alia, that the defendant was negligent in the design and manufacture of the product in that there was no adequate restraint to prevent the uplift of the backhoe; that, when a rollbar was attached to the tractor, an uplift of the backhoe off the ground would cause one in the operator's seat to be crushed against the rollbar; and that there was no warning against use of the backhoe with a tractor so equipped.
The defendant contended, inter alia, that the control lever of the tractor hitch had improperly been placed in an "up" position, thereby raising the backhoe into the rollbar. Plaintiff introduced expert testimony indicating the expected use of the backhoe in a digging operation would cause the back of the device, where the operator sat, to rear up. Thus was issue drawn, and the parties were without eyewitnesses.
During the course of discovery, plaintiff, by interrogatory, sought the following information from the defendant:
XXII
If you have knowledge of any accident, incidents, or occurrences resulting in the bodily injury or death of an operator of a backhoe of similar model to the one in this suit, please state:
(a) The number of such accidents, incidents or occurrences of which you have knowledge;
(b) The approximate dates of each such accident, incident or occurrence;
(c) The name and address of each person injured;
(d) A brief description of each accident, incident or occurrence, including specifically, how each injury or death was sustained;
(e) Whether suit was filed against you, and if so, the Court in which each suit was filed, and the date of its filing, and the disposition of each such suit.
The defendant responded as follows:
Without, in any manner, waiving its objections as to relevance, materiality and reasonable calculation to lead to the discovery of admissible evidence, and in the spirit of cooperation the defendant and third-party plaintiff responds to said interrogatory by stating that it has no present knowledge of any accidents, injuries or death resulting from the operation of the particular backhoe model in question prior to the incident which forms the subject matter of this litigation. (emphasis added).
Later, while taking the deposition of the defendant's design engineer, Max Saunders, the plaintiff discovered that there had been at least two such accidents subsequent to the death of plaintiff's son. However, acting upon advice of counsel, the agents of defendant, including the deposition witness, refused to reveal the details of these subsequent accidents.
The plaintiff, pursuant to Rule 37(a), Fed.R.Civ.P., moved the Court to compel the defendant to provide the information sought by the interrogatory. The Court without stating its reasons denied the plaintiff's motion.
On appeal, the plaintiff argues that the denial of the motion to compel was reversible error. We agree.
In our analysis, we start with the proposition that discovery ". . . together with pretrial procedures make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). As the Supreme Court stated in the landmark decision of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947),
The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pre-trial functions of notice-giving, issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings. Inquiry into the issues and the facts before trial was narrowly confined and was often cumbersome in method. The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.
329 U.S. at 500-501, 67 S.Ct. at 388-389.
We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of "fishing expedition" serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. (footnotes omitted)
329 U.S. at 507, 67 S.Ct. at 392.
Rule 33 of the Federal Rules of Civil Procedure provides, in pertinent part, that "(e)ach interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. Likewise, Rule 37(a)(3), Fed.R.Civ.P., provides that, "an evasive or incomplete answer is to be treated as a failure to answer."
Discovery by interrogatory requires candor in responding. This is not to say that a party must answer every interrogatory put by his adversary. Indeed, the development of the multiple, memory, typewriter has produced " boiler plate" interrogatories often devised for such multiple issues that the propriety of any one question vis-a-vis the case at issue is chancy at best. The candor required is a candid statement of the information sought or of the fact that objection is made to furnishing the information. A partial answer by a party reserving an undisclosed objection to answering fully is not candid. It is evasive.
In the instant case, it is easily seen that the response to the plaintiff's interrogatory was evasive as well as incomplete. Counsel for defendant did not object to the interrogatory. 1 Rule 33 requires that the particular interrogatory be fully answered by the party or that objection to it and the grounds of objection be stated. A unilateral declaration that no objections are waived will not be allowed to displace the command of Rule 33 that the party either answer fully or object. Defendant did neither.
Therefore the trial judge erred in refusing to compel the defendant to answer the interrogatory. By failing to object, defendant waived any objections it might have had to the giving of a full answer to the interrogatory. Likewise, since an evasive or incomplete answer is equated with failure to answer, the defendant did, under the law, fail to answer, thus waiving any objections to the interrogatory.
There is an additional reason why the trial court should have compelled the defendant to answer that part of the interrogatory evaded.
Rule 26(b)(1) states the general rule with regard to the scope of discovery.
Parties may obtain discovery regarding any matter, not...
To continue reading
Request your trial
-
Moore v. Ashland Chemical, Inc.
...in original) "Virtually all evidence is prejudicial or it isn't material. The prejudice must be 'unfair.' " Dollar v. Long Mfg. N.C., Inc., 561 F.2d 613, 618 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). The Advisory Committee Note on Rule 403 provides tha......
-
Physicians Healthsource, Inc. v. Allscripts Health Solutions, Inc.
...983, 2 L.Ed.2d 1077, (1958) ; Hickman v. Taylor, 329 U.S. 495, 500, 67 S.Ct. 385, 91 L.Ed. 451 (1947), See Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (5th Cir. 1977) ; Ortiz–Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 31 (1st Cir. 2001) ;......
-
Christophersen v. Allied-Signal Corp.
...defendants' affiants are right? That assumption has not been a predicate in the past for Rule 403 exclusion. See Dollar v. Long Mfg., N.C. Inc., 561 F.2d 613, 618 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). We have viewed Rule 403 as an extraordinary rem......
-
U.S. v. Moreno Morales
...227, 88 L.Ed.2d 227 (1985). The question is one of "unfair" prejudice--not of prejudice alone. See, e.g., Dollar v. Long Manufacturing, N.C., Inc., 561 F.2d 613, 618 (5th Cir.1977) ("virtually all evidence is prejudicial or it isn't material. The prejudice must be 'unfair' "), cert. denied,......
-
Discovery
...every ground for objecting, if you wish to preserve that ground as a valid objection. FRCP 33(b)(4); Dollar v. Long Mfg. N.C., Inc ., 561 F.2d 613, 616 (5th Cir. 1977). Grounds not stated in a timely objection are waived, unless, for good cause, the court excuses the party’s failure to obje......
-
Table of Cases
..., 86 F.3d 37 (2d Cir. 1996), §7:88 Doe v. State of Nebraska , 971 F.Supp. 1305 (D. Neb. 1997), §8:15 Dollar v. Long Mfg. N.C., Inc. , 561 F.2d 613, 616 (5th Cir. 1977), §4:53 Donnelly v. Glickman , 159 F.3d 405 (9th Cir. 1998), §7:35 Dorsey v. HCP Sales , 46 F.Supp. 2d 804 (N.D. Ill. 1999),......
-
§ 13.08 ADMISSIBILITY FOR OTHER PURPOSES
...the 1974 warning was adequate given the knowledge it had at that time. This defense simply does not raise an issue of feasibility.").[33] 561 F.2d 613, 618 (5th Cir. 1977). Accord Wood v. Morbark Indus., Inc., 70 F.3d 1201, 1208 (11th Cir. 1995) ("By referring to the seventeen-inch chute le......
-
§ 13.08 Admissibility for Other Purposes
...the 1974 warning was adequate given the knowledge it had at that time. This defense simply does not raise an issue of feasibility.").[32] 561 F.2d 613, 618 (5th Cir. 1977). Accord Wood v. Morbark Indus., Inc., 70 F.3d 1201, 1208 (11th Cir. 1995) ("By referring to the seventeen-inch chute le......