Durocher's Ice Cream, Inc. v. Peirce Const. Co.

• Decision Date: 24 May 1965
• Citation: 210 A.2d 477,106 N.H. 293
• Parties: DUROCHER'S ICE CREAM, INC., et al. v. PEIRCE CONSTRUCTION COMPANY, Inc.
• Court: New Hampshire Supreme Court

Page 477

210 A.2d 477

106 N.H. 293

DUROCHER'S ICE CREAM, INC., et al. v. PEIRCE CONSTRUCTION COMPANY, Inc.

Supreme Court of New Hampshire.

Argued Jan. 6, 1965.

Decided May 24, 1965.

SYLLABUS BY THE COURT

1. The use of depositions and discovery as an integral part of pretrial procedure is given a broad and liberal interpretation; and ordinarily their breadth and scope are for the Trial Court to determine.

2. Under Superior Court Rule 37 the relevancy of evidence sought on deposition does not depend upon its admissibility at trial providing it is reasonably calculated to lead to the discovery of admissible evidence.

3. Questions asked on deposition in an action for damages resulting from the negligent performance of construction work by the defendant's employees were neither privileged nor excused merely because they involve the financial relationship between the defendant and its officers.

4. In such case, questions on deposition relating to the average number of employees of the defendant was held to be a proper inquiry as bearing on question of the sufficiency of personnel on the construction project.

5. So also in such case questions relating to the financial relationship between the deponent officer of the defendant corporation and the defendant and other corporations in which the deponent and his wife may be interested were proper inquiries on deposition which could lead to the discovery of evidence of mortgaging or depletion of assets during litigation which may indicate a consciousness of liability.

6. Where such questions are propounded for the purpose of embarrassment or harassment the Trial Court may forbid them as an impertinent intrusion. Plaintiffs brought suit to recover damages for injury to its property caused by a fire from an acetylene torch used by the defendant's employees in an allegedly negligent manner while engaged in construction work on the plaintiffs' premises. The plaintiffs took the deposition of James B. Peirce who was treasurer of the defendant corporation. Upon advice of the defendant's counsel, the deponent refused to answer the following questions:

1) 'What percentage of the stock in that corporation (the defendant) do you own?'

2) 'Are you a majority stockholder in the corporation?'

3) 'Does she (Mrs. Peirce) receive a salary for her efforts or labors on behalf of the corporation?'

4) 'On a yearly average, approximately how many employees does the corporation have?'

5) 'What other business corporations besides Peirce Construction Company, Inc. are you either an officer of, employee of, or a stockholder in?'

6) 'Are you an officer of Electromatic Manufacturing Company, Inc.?'

7) 'Are you an officer of The Peirce Company, Inc.?'

Thereupon the plaintiffs filed a motion with the Trial Court that the deponent be ordered to answer these questions. The Court made the following order: 'Deponent is ordered to answer the questions which are the subject matter of this motion. While not relating to the merits of the law action, they do relate to property under attachment and the question of fraudulent conveyance, and whether the assets of the defendant are being systematically depleted. These matters are material to a determination whether to seek equitable relief or make further attachments under RSA ch. 545.' The defendant's exceptions to this order were reserved and transferred by Grimes, J.

Sheehan, Phinney, Bass, Green & Bergevin and Devine, Millimet, McDonough, Stahl & Branch, Manchester (John M. Tobin, Manchester, orally), for plaintiffs.

Robert Shaw, Exeter, McLane, Carleton, Graf, Greene & Brown, Manchester (G. Marshall Abbey, Manchester, orally), for defendant.

KENISON, Chief Justice.

The use of depositions and discovery as an integral part of pretrial procedure has been given a broad and liberal interpretation in this jurisdiction. Lincoln v. Langley, 99 N.H. 158, 106 A.2d 383; Reynolds v. Boston & Maine Transp. Company, 98 N.H. 251, 98 A.2d 157, 37 A.L.R.2d 1149. While it is impossible to state in advance the precepts of relevancy, it has been the policy in this state not to place any crippling limitations on the use of discovery and depositions. McDuffee v. Boston & Maine R. R., 102 N.H. 179, 152 A.2d 606, 74 A.L.R.2d 872. For the most part the necessary flexibility in controlling the breadth and scope of discovery and depositions has been left with the Presiding Judge of the trial court. Drake v. Bowles, 97 N.H. 471, 92 A.2d 161; Lefebvre v. Somersworth Co., 93 N.H. 354, 41 A.2d 924; State v. Cote, 95 N.H. 108, 58 A.2d 749. As was stated in Town of New Castle v. Rand, 101 N.H. 201, 202, 136 A.2d 914, we 'have proceeded on the basic assumption that the orderly dispatch of judicial business is accomplished more efficiently where every plaintiff and every defendant is given adequate opportunity to properly prepare his case before trial.'

The first paragraph of Superior Court Rule 37 reads as follows: 'The deponent, on deposition or on written interrogatory, shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony...