Hardenbergh v. Both

• Decision Date: 15 November 1955
• Docket Number: No. 48778,48778
• Citation: 247 Iowa 153,73 N.W.2d 103
• Parties: Frank H. HARDENBERGH, Administrator of the Estate of Clair F. Hardenbergh, Deceased, Appellee, v. Darrell E. BOTH, Paul M. Both and Tena Both, his wife, Appellants. Frank H. HARDENBERGH, Administrator of the Estate of Billie Jean Hardenbergh, Deceased, Appellee, v. Darrell E. BOTH, Paul M. Both and Tena Both, his wife, Appellants.
• Court: Iowa Supreme Court

Page 103

73 N.W.2d 103

247 Iowa 153

Frank H. HARDENBERGH, Administrator of the Estate of Clair F. Hardenbergh, Deceased, Appellee, v. Darrell E. BOTH, Paul M. Both and Tena Both, his wife, Appellants.

Frank H. HARDENBERGH, Administrator of the Estate of Billie Jean Hardenbergh, Deceased, Appellee, v. Darrell E. BOTH, Paul M. Both and Tena Both, his wife, Appellants.

No. 48778.

Supreme Court of Iowa.

Nov. 15, 1955.

Peterson, Smith, Peterson, Beckman & Willson, Council Bluffs, for appellants.

Harold DeKay, Atlantic, for appellees.

BLISS, Justice.

The factual matters of these proceedings must be found in the pleadings, the interrogatories and the objections thereto, the ruling on the objections, the application to this Court for an interlocutory appeal and the resistance thereto.

The petitions, we assume, are substantially the same with respect to the allegations of recklessness, although the petition in the printed Record, before us, is in behalf of the Estate of Clair F. Hardenbergh. It alleges that: on and prior to May 24, 1953, Darrell E. Both was the 'owner of record' of a certain Ford automobile, although the actual owners were Paul M. Both and his wife, Tena; on said date, with the knowledge and consent of Paul and Tena, the said Darrell, with Clair F. Hardenbergh, as his guest and passenger, at approximately one o'clock in the morning, was driving said automobile on Highway No. 64 from Neola, Iowa into the town of Minden, Iowa, at which place, by his reckless and heedless operation, he wrecked the automobile and thereby inflicted injuries on said Hardenbergh, causing his death within two hours afterward. The petition alleged reckless operation of the automobile by said defendant at an excessive rate of speed, beyond his control, on a dark night, over a road with many curves and grades, without care, heed or concern for consequences to persons or property, and in such manner that the automobile left the pavement on the left-hand side of the main street in Minden and collided with and tore the bark off a large tree, and continued for a further distance of about two hundred feet where it crashed against a tree completely wrecking the automobile, thereby causing the death of Clair Hardenbergh, who was free from any negligence contributing to his injury. The petition alleged that Hardenbergh was twenty-four years of age, economical, healthy, married, and earned, and was capable of earning, money and accumulating an estate. Judgment was asked for $51,390.

The trial Court ordered Interrogatories numbered 2, 5, 6, 7, 9, 10, 11, 16 and 17 to be answered by Darrell E. Both, within twenty days from the date of the ruling. Speaking of the hearing on the objections to the interrogaroties, the Court said: 'At said hearing it was called to the Court's attention that this was one of a series of cases brought to enforce a claimed liability for reckless operation, by passengers in the car, and that following the accident herein the only person who survived was the driver, and that he is the only person having any knowledge of the circumstances leading up to the accident and deaths. (Italics ours.)

'The Court is familiar with the cases and has had called to his attention all of the cases of the Supreme Court that have sought to interpret the real meaning of Rule 121 and other sections and finds it difficult, if not impossible to harmonize the case of Nehring v. Smith, 49 N.W.2d 831 with Meyers v. Stratman, 65 N.W.2d 356.

'The Court recognizes that the factual matters in the instant case are similar, if not identical with the matters in Nehring v. Smith where the Supreme Court said in subdivision 4 thereof, 'We think sufficient necessity for answer to the interrogatories appears from * * * the admitted fact that the only occupant of the car other than the driver was killed by the collision.' * * *.

'The instant case it seems to the Court, must be ruled by the decision in Nehring v. Smith, and while certain of the interrogatories as the Court finds are either specifically taken care of by pleadings that are on file or seem to be either immaterial and so not necessary in order to adequately prepare for trial, there are certain of said interrogatories which the Court feels should be answered.' (Naming those noted by number above.)

It appears from Interrogatory No. 1 that Billie B. Hardenbergh and Richard Gaylord were also passengers and guests in the automobile in Minden at one o'clock in the morning on May 24, 1953. Referring to the interrogatories which the Court required to be answered the Record shows as follows: No. 2 was whether the driver collided with a tree on the north side of Highway No. 64 in the western limits of Minden, Iowa at 1:00 A.M. of May 24, 1953; No. 5 was 'state your speed at the time just prior to colliding with a tree in Minden'; No. 6 was to state the speed approximately one mile west of Minden; No. 7 was 'State what, if any, conversation went on between you and your passenger, Clair F. Hardenbergh, with reference to the speed of your automobile; slowing down for the city of Minden; or any other matter pertaining to the operation of your automobile within the last twenty minutes just prior to the collision?'; No. 9 was 'Please state your speed at the time you made the turn on Highway 64 and entered the city limits going in an easterly direction at the above described time and place referred to in Interrogatory No. 1?'; No. 10, 'Please state whether or not you lost control of your automobile prior to the collision, and if your answer to this question is 'Yes', state where, with reference to the tree described in Interrogatory No. 2, you were, at such time with reference to the time and place referred to in Interrogatory No. 1?'

No. 11, 'Please state whether or not you applied your brakes prior to the accident, and if your answer is 'Yes', at what point at the above-described time and place referred to in Interrogatory No. 1?'

No. 16, 'Please state the mechanical condition of your Ford automobile you were operating at the time and place referred to in Interrogatory No. 1?'

No. 17, 'Please state whether or not to your knowledge there was any structural failure of the Ford automobile which you were operating at any time, just prior to the collision?'

These interrogatories to which the defendants-appellants objected were identical in substance or very similar in kind to those which this Court in Nehring v. Smith, 243 Iowa 225, 49 N.W.2d 831, held were proper under like circumstances.

Application for an interlocutory appeal was made to, and granted by, this Court. Resistance filed to this application, is as follows: 'Comes now the plaintiff in the above captioned actions and states that the facts and circumstances of both actions are similar and that one action is for the wrongful death of a young husband and the other an action for the wrongful death of the young wife, except, that while it does not so far appear in the record, the defendant, Darrell E. Both, was the sole surviving person from the accident in which the cause arises.

'1. That this action was very similar to the accident in Nehring v. Smith, 243 Iowa 225, 49 N.W.2d 831 in that it is a guest case bottomed on recklessness and that all of the occupants of the car, except for the defendant driver, were killed upon impact, except for Clair F. Hardenbergh, who died without regaining consciousness and within two hours later. That there were no eyewitnesses to the accident. That this case is clearly within the provision of the Nehring case, and not within the scope of Reeves v. Penaluna, Iowa, 66 N.W.2d 864, which turns on the fact that there are other witnesses to prove the recklessness of the defendant.'

The objections to the interrogatories are as follows:

'1. Each of said interrogatories seeks to determine the manner in which defendant will establish his case.

'2. Each of said interrogatories is an attempted discovery which is not permitted by the Iowa Rules of Civil Procedure.

'3. Each of said interrogatories seeks to produce evidence for the record in the above case.

'4. None of said interrogatories seeks to require disclosure of facts peculiarly within defendant's knowledge.

'5. None of said interrogatories seeks to require disclosure of facts not known by the plaintiff.'

After the hearing on the interrogatories and the objections, the trial Court denied the objections as having no merit with respect to the interrogatories, set out above. We are in accord with this ruling.

I. As stated in 27 C.J.S., Discovery, § 1, p. 5, 'The term 'discovery' has several shades of meaning, but in the sense in which it is most commonly used discovery is the disclosure by defendant of facts, deeds, documents, or other things which are in his exclusive knowledge or possession, and which are necessary to the party seeking the discovery as a part of a cause of action pending, or to be brought in another court, or as evidence of his rights or title in such proceedings.' See also 17 Am. Jur. (Discovery and Inspection) 5, 6.

Its enforcement was an original and inherent power of a court of equity. Originally, discovery, in the prosecution of a cause of action or the defense to it were available to either party only by a bill in equity. Professor Langdell in his Equity Pleading, 242, said: 'A plaintiff, in equity, is entitled to the benefit of all evidence in the defendant's possession which will aid him in proving the allegations and charges in the bill, whether such evidence consists of his personal knowledge, or be contained in documents and writings.'

Later the result was accomplished by statutory proceedings to inspect property or instrumentalities involved, or books and papers, and the like, bills of particulars, and by interrogatories. Still later, in many states, including Iowa, these various procedures were provided for by Civil Rules of Procedure. The equitable action to obtain a bill of discovery was long since...