Looney v. Saltonstall

• Decision Date: 24 May 1912
• Citation: 98 N.E. 698,212 Mass. 69
• Parties: LOONEY v. SALTONSTALL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 69

98 N.E. 698

LOONEY v. SALTONSTALL et al.

Supreme Judicial Court of Massachusetts, Essex.

May 24, 1912

COUNSEL

Gleason & Higgins, of Boston, for plaintiff.

Hutchins & Wheeler, of Boston, for defendants.

OPINION

RUGG C.J.

This case involves a construction of R. L. c. 173, § 57, as amended by St. 1909, c. 225, which substituted a new section and which relates to interrogatories in civil actions. ^[1]

This amendment, although adverted to in Grebenstein v. Stone & Webster Engineering Corp., 205 Mass. 431, 439, 91 N.E 411, never has been interpreted. A comparison of the old with the new section reveals certain obvious and important changes. In the earlier statute parties were not quite on the same basis as to the time of filing interrogatories. The plaintiff could file them after the entry of the action, but the defendant could do so only after he had completed his pleadings. By the amendment, all parties stand on the same footing, and may file interrogatories after the entry of the action.

The earlier statute confined the right of each party to inquiries aimed at the discovery of facts and documents material to the support of the contentions set up by his own pleadings. The amendment removes this definite restriction and permits interrogatories as wide in scope as the issues presented for trial, subject, however, to the single limitation, 'except as hereinafter provided.' These words manifestly refer to R. L. c. 173, § 63, which provides in substance that no party shall be compelled by an answer to criminate himself or to disclose title to property not material in the trial, or 'to disclose the names of the witnesses by whom or the manner in which, he proposes to prove his own case.' These words have been in our practice act without significant change since its first enactment in St. 1851, c. 233, § 106, and the same is true of section 57 prior to its amendment in 1909.

These two sections as they appeared in the statute of 1852 were construed by Mr. Justice Bigelow speaking for the court, in Wilson v. Webber, 2 Gray, 558, who said, 'the plaintiff may interrogate upon any matter material to the support of his case, and the defendant upon those material to his defense. * * * Each party is to be confined to those matters which are material to sustain the case which he sets up by his pleadings; he is to be allowed to obtain by interrogating his adversary proofs of his own case, but not those which establish the case set up against him.' See to the same effect Wetherbee v. Winchester, 128 Mass. 293, and Davis v. Mills, 163 Mass. 481, 40 N.E. 852. The statute of 1909 has modified the law as thus declared. Each party is no longer confined to matters strictly in support of his own case. He may inquire as to anything which would be competent in evidence, subject to the narrowing effect of section 63. The limiting words of that section material to this case prohibit interrogatories, the answers to which would disclose 'the manner in which' the adverse party 'proposes to prove his own case.' As to the meaning of these words, it was said in Wilson v. Webber: 'This provision is entirely inconsistent with the theory that by section 61 [now R. L. c. 173, § 57] a right was given to a party to seek by interrogatories a disclosure of the case that was to be set up against him; because such a right could not be exercised to any effective purpose under such a restriction as is imposed by section 69 [now R. L. c. 173, § 63]. It is difficult to imagine a question relative to material facts in support of a case against a party, the answer to which would not necessarily involve a disclosure of the mode of proof.' In terms this case holds that the manner in which a case is to be proved (as these words are used in the statute) mean the substance as well as the form by which a case is to be supported. It relates not merely to the medium of proof, but includes also the facts to be proved. This language and the amplification of interpretation given to this section in Wilson v. Webber have been left unaffected by the amendment of St. 1909, c. 225. The exception contained in its last clause in effect imports into its terms the provisions of section 63 as it had been interpreted by decisions of this court. Wilson v. Webber still correctly states the law in this respect in view of St. 1909, c. 225. It has been said that the reenactment without change of a statute, which has received previously a long continued executive construction, is a legislative adoption of such construction. United States v. Hermanos & Compania, 209 U.S. 337-339, 28 S.Ct. 532, 52 L.Ed. 821; Komanda v. United States, 215 U.S. 392, 30 S.Ct. 136, 54 L.Ed. 249. The reason is all the stronger for the assumption that the interpretation given by the court of last resort to language employed in a statute is adopted and approved by the legislative department when that statute is re-enacted without substantial change. Welsh v. Boston, 211 Mass. 178, 97 N.E. 893, ante.

The result is that St. 1909, c. 225, has enlarged the time within which interrogatories may be propounded by any party to that intervening between the...