Indiana & Michigan Elec. Co. v. Whitley County Rural Elec. Membership Corp., 3--174A9

• Decision Date: 17 September 1974
• Docket Number: No. 3--174A9,3--174A9
• Citation: 161 Ind.App. 492,316 N.E.2d 584
• Court: Indiana Appellate Court
• Parties: INDIANA & MICHIGAN ELECTRIC COMPANY, Appellant-Defendant, v. WHITLEY COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Appellee-Plaintiff.

Page 584

316 N.E.2d 584

161 Ind.App. 492

INDIANA & MICHIGAN ELECTRIC COMPANY, Appellant-Defendant, v. WHITLEY COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION Appellee-Plaintiff.

No. 3--174A9.

Court of Appeals of Indiana, Third District.

Sept. 17, 1974.

Milford M. Miller, Edward L. Murphy, Jr., C. Erik Chickedantz, Livingston, Dildine, Haynie & Yoder, Fort Wayne, for appellant-defendant.

Bloom, Bloom & Fleck, Columbia City, Parr, Richey, Obremskey, Pedersen & Morton, Lebanon, for appellee-plaintiff.

GARRARD, Judge.

This is a companion case to I & M Electric Co. v. Whitley Co. REMC, decided June 19, 1974, Ind.App., 312 N.E.2d 503, and is controlled by that decision.

While the subject matter involves different land annexed by Huntertown, again the court granted the REMC a permanent injunction on its motion for summary judgment upon a showing that I & M was commencing to serve the annexed 33.51 acres without having negotiated with REMC 'for the purchase of its property within the annexed area and used and useful in or in connection with rendering electric utility service therein', and without having commenced an action to condemn the same. ¹ Again it appears that REMC had no tangible property located within the area annexed.

Our decision in I & M Electric Co. v. Whitley Co. REMC (1974), Ind.App., 312 N.E.2d 503, is fully applicable to the main issues raised by appellant herein and requires that the summary judgment be reversed.

There is in the present case, however, an issue of trial procedure that was not involved in the other case. In the course of pre-trial discovery, I & M addressed twenty-two interrogatories to REMC. The court sustained REMC's objections to interrogatories 12, 13, 18 and 19. While it does not appear that the court ruled on the objection to interrogatory 17, it was not answered prior to determination of the summary judgment.

Interrogatory No. 12 sought to discover REMC's contention as to whether a particular substation would have been constructed or its rated capacity increased if, at the time such work was done, the 33.51 acres in question had already been annexed by Huntertown. No. 13 referred to No. 12 and requested the reasons why and the identity of persons expected to testify thereto.

No. 17 sought REMC's similar contentions regarding a one-phase power line constructed near the annexed area.

No. 18 sought identification of the precise nature and geographical location to each item of tangible property belonging to REMC and located in the township which REMC contended 'would not have been built, constructed, purchased and/or invested in' had the annexed area been a part of Huntertown on January 1, 1936, which was prior to REMC's orgainization. No. 19 sought to determine the cost and present value of all such items.

REMC's objection to each of these interrogatories was that the interrogatory sought to discover a party's contention regarding a factual matter to be decided by the court. In addition, Nos. 18 and 19 allegedly called for speculation as to the state of mind of the officers of REMC as of January 1, 1936.

Indiana Rules of Procedure, Trial Rule 26(B)(1) makes available pre-trial discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. TR 33(B), dealing specifically with interrogatories, provides they may relate to any matter which may be inquired into under TR 26(B) and are not objectionable merely because an answer involves an opinion, contention, or legal conclusion.

It is unnecessary to here consider the broad ambits of discovery as a concomitant to the theories of notice pleading. The rule specifically permits the acquisition of relevant information although it may be deemed an opinion or...