Giacumbo v. Pub. Serv. Coordinated Transp..

• Decision Date: 08 April 1948
• Citation: 58 A.2d 287
• Parties: GIACUMBO et al. v. PUBLIC SERVICE COORDINATED TRANSPORT.
• Court: New Jersey Court of Common Pleas

58 A.2d 287

GIACUMBO et al.

v.PUBLIC SERVICE COORDINATED TRANSPORT.

Court of Common Pleas of New Jersey, Hudson County.

April 8, 1948.

Suit by Jessie Giacumbo and Frank Giacumbo against the Public Service Coordinated Transport to recover for injuries sustained by Jessie Giacumbo while a passenger in defendant's bus. On motion by defendant to strike a demand made on it for the particulars of its pleaded defenses of sole negligence and contributory negligence.

Motion to strike granted.

Andrew O. Wittreich, of Jersey City, for plaintiffs.

Carl T. Freggens and Herman H. Wille, Jr., both of Newark, for defendant.

DREWEN, Common Pleas Judge.

Defendant moves to strike a demand made upon it for the particulars of its pleaded defenses of sole negligence and contributory negligence. The suit is one for injuries alleged to have been sustained by the female plaintiff while a passenger in defendant's bus. The demand is for the particulars of the passenger's behavior constituting the grounds of the defenses mentioned. Defendant contends that the demand is improper, for reasons that will appear.

Plaintiffs' attorney approaches the problem with much indignation that in a case of this kind, where injuries are alleged by a passenger against a common carrier, such defenses should be resorted to, and he urges that since they have been resorted to there is nothing for it but to correct the enormity by requiring that the details be revealed in advance of trial. For answer to this it need only be observed that in a case like that before us it is certainly not usual for a defense like either of those adduced to prevail, but that at the same time there is no reason in law for regarding the defenses as outside the scope of permissible pleading nor for assuming that they cannot be supported by provable facts. On defendant's part, it is urged, in effect, that it has a right to these defenses, if only as matter of caution, and to rely for their establishment upon the fortuities of proof at the trial; that the restricting of the defenses by particulars now might deprive it of the benefit of such proof; and that in any case the details demanded are peculiarly within plaintiffs' own knowledge.

The theory and purpose of pretrial inquest, in whatever form, is the compelling of factual truth in the controversy, short of invading the private, separate counsels of the parties. Hence the well-recognized rule that one may exact disclosure of what is needful to the proof of his own case but may not pry into that of his adversary. Concerning the plaintiffs' demand before us, it is the Court's view that it does not seek what is needful to the proof of plaintiffs' case, that its enforcement would not serve to clicit any truth that plaintiffs do not already know, and might result in the harmful suppression of truth as developed in the course of the trial.

We think this view can be readily justified. Where does the truth-seeking test, applied in conformity with the theory and purpose of pre-trial inquiry already stated, lead us in the present circumstances? Let us assume that the defenses in question are entirely cautionary, and that the defendant, were the demand sustained, would have to admit that it is aware of no particulars, or that, in the same contingency, it would be driven to the device of being extremely imaginative in anticipating all possible developments in the proof as well as every possible variety of negligence on the part of the passenger, and of citing all of these as a compliance...