Goldman v. Ashkins

• Decision Date: 04 March 1929
• Citation: 266 Mass. 374,165 N.E. 513
• Parties: GOLDMAN v. ASHKINS. LISKER v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 374

165 N.E. 513

GOLDMAN

v.ASHKINS.

LISKER

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1929.

Actions of tort by Samuel Goldman and Goldie Lisker against Nat T. Ashkins. On report from the Superior Court after entry of orders denying defendant's motion to nonsuit plaintiffs for failure to answer interrogatories, and granting motions of plaintiffs to strike interrogatories from files. Orders reversed.A. A. Tucker, of Boston, for plaintiffs.

N. F. Hesseltine, of Boston, for defendant.

RUGG, C. J.

These are actions of tort. According to the writs the plaintiffs are residents of Boston and the defendant is a resident of Minneapolis in the State of Minnesota. There are allegations in each declaration in substance that the plaintiff, while in the exercise of due care and traveling in an automobile on a highway in Danvers in this Commonwealth, was injured through the negligence of the defendant, his servants or agents, in operating an automobile whereby there was a collision and the plaintiff was caused bodily injury, suffering and loss of time and expenses. There are further allegations in the declaration in the first case, setting out property damage to the automobile of the plaintiff caused by the same negligence. The answer in each case was a general denial with averment of contributory negligence.

The case comes before us on report. The only questions thus presented relate to interrogatories. In the report appears the following statement: ‘The defendant on May 18, 1928, filed in the Lisker case 82 interrogatories to the plaintiff, and in the Goldman case 102 interrogatories to the plaintiff, and many of the interrogatories were subdivided. These interrogatories were not prepared with particular reference to these cases, but were stock forms prepared for use in any and all automobile accident cases. They were mimeographed, not written, dictated or typewritten, but prepared in large quantities with the intent to file a copy in any and every automobile accident case without any necessity for thought or labor with reference to the particular case in which such copy might be filed. The interrogatories in these cases are made a part of this report by reference. The plaintiff Goldie Lisker is an unmarried woman about twenty-two years old, and there is no suggestion in the record, and there was none at the hearing, that she ever had borne a child. No fact, not appearing in this report, tending to show the materiality of any of these interrogatories, was suggested at the hearing. Notice of the filing of such interrogatories, accompanied by copies of the interrogatories, was given by the defendant to the attorney of record for the plaintiffs. No answers thereto were filed within ten days thereafter of at any time. On July 10, 1928, the defendant moved to nonsuit the plaintiffs for failure to answer the interrogatories, and on July 17, 1928, the plaintiffs moved to strike from the record the defendant's interrogatories, on the grounds [a] that ‘most of said interrogatories are immaterial and irrelevant; [b] that they are a so-called stock set; [c] are too voluminous; and [d] that they are intended to harass and annoy the plaintiff [e] and that said interrogatories place an unnecessary burden upon this court.’ After hearing, on July 23, 1928, I denied the defendant's motions and granted the motions of the plaintiffs,with leave to the defendant to interrogate anew, and the defendant duly excepted. Being of opinion, especially in view of the increasingly common use of such voluminous stock sets of interrogatories, that my interlocutory order denying the motions of the defendant and granting the motions of the plaintiffs ought to be determined by the full court before any further proceedings in the trial court, at the request of the defendant I report these cases for that purpose.'

The meaning of our earlier statutes as to interrogatories was set forth in a luminous opinion in Wilson v. Webber, 2 Gray, 558. Under those statutes manifestly these interrogatories would not have been permissible. The right to interrogate parties was enlarged by St. 1909, c. 225. The change thus effected was discussed in Looney v. Saltonstall, 212 Mass. 69, 98 N. E. 698. Meanwhile, pursuant to chapter 115 of Resolves of 1909, a commission was created to ‘investigate the causes of delay in the administration of justice in civil actions * * * the expediency of permitting the examination of parties * * * at an early stage of judicial proceedings. * * *’ The report of that commission presented to the General Court in 1910 contained these words at page 19: ‘We have suggested a wide extension of the power to interrogate parties.’ A more sweeping expansion in the law as to interrogatories was made by St. 1913, c. 815, now embodied without material change in G. L. c. 231, §§ 61 to 67, both inclusive, except that section 63 has been amended by St. 1922, c. 314. The force and effect of these changes were discussed at some length in Cutter v. Cooper, 234 Mass. 307, 125 N. E. 634. It there was said at page 314 (125 N. E. 636) that now ‘the scope of the subjects about which interrogatories may be asked is as broad as the field of inquiry when the person interrogated is called as a witness to testify orally in the actual trial,’ with qualifications not here material. That was a simple statement in slightly amplified form of the terms of said section 61 that ‘any party * * * may interrogate an adverse party for the discovery of facts and documents admissible in evidence at the trial.’ Whatever may be thought concerning the practical operation of the statute (see Report of Committee on Legislation of Massachusetts Bar Association for 1913, pages 39 to 43), there can be no doubt as to its meaning and it cannot be thought that there was any inadvertence on the part of the Legislature in enacting it. All that was decided in Cutter v. Cooper is reaffirmed. It is pertinent to the present cause.

The specific grounds on which the action of the trial judge rested are not stated definitely. Hence it is necessary to examine all grounds available on the record to determine whether that action can be supported.

1. The validity of interrogatories is not dependent upon the questions whether they were ‘prepared with particular reference’ to or necessitated ‘thought or labor’ touching the cases at bar. The method of preparation is of no consequence. The only relevant point is whether they are reasonably adapted to seek ‘discovery of facts or documents admissible in evidence at the trial of the case.’ Doubtless many questions might rightly be the same with respect to automobile accidents regardless of the special facts of a given case.

2. When interrogatories are filed it is wholly immaterial whether they are ‘stock forms,’ whether they are ‘mimeographed’ or ‘written, dictated or typewritten,’ or ‘prepared in large quantities,’ so long as they are proper in substance and comply with section 7 of the ‘General Rules to the Records of the Supreme Judicial and Superior Courts.’ Rules of Supreme Judicial Court (1926), p. 61. The only thing to be considered is whether the interrogatories are pertinent to the issues in the case.

3. It is stated in the report that the plaintiff Goldie Lisker ‘is an unmarried woman.’ That fact did not appear in the writ or declaration. It is not stated that it was known to the defendant or his counsel when the interrogatories were filed or prior to the hearing on the ...