Hitchcock v. Ginsberg

• Decision Date: 03 May 1949
• Docket Number: 47461.
• Parties: HITCHCOCK et al. v. GINSBERG.
• Court: Iowa Supreme Court

37 N.W.2d 302

240 Iowa 678

HITCHCOCK et al. v. GINSBERG.

No. 47461.

Supreme Court of Iowa

May 3, 1949

Lehmann Hurlburt, Hossfeld, Blanchard & Cless, of Des Moines, for appellant.

Evans Riley, Duncan, Jones and Hughes, of Des Moines, for appellees.

OLIVER Justice.

A personal injury negligence action for burns received by a child from a brush and rubbish fire on defendant's premises, allegedly ignited and left unguarded by his agents and employees. Defendant's Answer denied most of the material allegations of the petition.

Plaintiffs filed 23 interrogatories, inquiring of defendant, if he employed persons to clear out and clean said premises how many, their names and addresses, compensation instructions, the nature of the hiring agreement, their general occupations, fitness to do the work, prior employment by defendant, where they obtained an inflammable liquid used on the fire, the ownership of a bucket alleged to have contained the liquid, etc.

These were propounded under Rule of Civil Procedure 121 to enable plaintiffs 'adequately to prepare for trial.' Defendant objected to one interrogatory. The court overruled the objection. From this interlocutory ruling we granted defendant an appeal.

Division 5 of the Rules of Civil Procedure entitled Discovery and Inspection, contains Rules 121 to 134. Discovery and Inspection are phases of pre-trial procedure. R.C.P. 128 provides the answers to interrogatories may be used only as admissions of the interrogated party or to contradict or impeach his testimony as a witness.

This is the first case in which this court has considered R.C.P. 121. However, Chandler v. Taylor, 234 Iowa 287, 12 N.W.2d 590, which considered provisions of Division 5 of R.C.P. relative to the production of books and papers, quoted with approval statements that such provisions are remedial, have been given a broad and liberal interpretation and should be liberally exercised. Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451, states with reference to the Federal rules: '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.'

The modern trend has been to broaden the scope of discovery to give litigants access to all the material facts. State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920, 922; Slattery v. Parsons, Sup., 17 N.Y.S.2d 6, 9; Public Nat. Bank v. National City Bank, 261 N.Y. 316, 185 N.E. 395.

In the case at bar the objection was to interrogatory 3 only, 'What were their names and addresses?' (the persons defendant engaged to do the work). The ground of objection was that it required defendant to disclose 'the names of witnesses by whom he will establish his defense in part * * *.' Defendant relies upon a provision of R.C.P. 121, 'They shall not require the adversary to disclose the names of the witnesses by whom or the manner in which he will establish his case.'

F. & M. Skirt Co. v. Wimpfheimer & Bros., D.C., 25 F.Supp. 898, 899, refers to the provision of the Massachusetts statute, G.L. (Ter.Ed.) c. 231, § 63, that the party interrogated need not 'disclose the names of witnesses', and states, 'But here the inquiry is as to who the persons were who conducted the negotiations or procured the order on behalf of the defendant. This interrogatory should be answered.'

Watkins v Cope, 84 N.J.L. 143, 86 A. 545, 547, states: 'The interrogatories * * * should not be used for the mere purpose of prying into the case of his adversary * * * though the party may...