McDougall v. Dunn

• Decision Date: 10 October 1972
• Docket Number: No. 72-1096.,72-1096.
• Parties: Daniel J. McDOUGALL, Jr., Plaintiff-Appellant, v. Kenneth R. DUNN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

468 F.2d 468 (1972)

Daniel J. McDOUGALL, Jr., Plaintiff-Appellant, v. Kenneth R. DUNN, Defendant-Appellee.

No. 72-1096.

United States Court of Appeals, Fourth Circuit.

Argued August 29, 1972.

Decided October 10, 1972.

COPYRIGHT MATERIAL OMITTED

Eugene H. Phillips, Winston-Salem, N. C., for appellant.

Joe McLeod, Fayetteville, N. C. (Quillin, Russ, Worth & McLeod, Fayetteville, N. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and CRAVEN and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge:

While riding as a passenger in a car driven by the defendant, the plaintiff received serious brain injuries, which resulted in amnesia. At the time of the accident, the plaintiff, as well as the defendant and the third occupant of the car, were members of the armed services, stationed at Fort Bragg, North Carolina. Since he was in the military service at the time, the plaintiff was immediately carried, following the accident, to the Womack Hospital at Fort Bragg, where he received first-aid treatment, and then was taken to the U. S. Naval Hospital at Portsmouth, Virginia, where he remained from February 3, 1968, to August, 1968, under the care and treatment of neurosurgeons. In July, he was given a thirty-day leave to return home but, at the end of the leave, returned to the hospital at Portsmouth, not being discharged until near the end of the year 1968. In short, he was in the hospital at Portsmouth, under treatment for his brain injury, practically continuously for almost a year after the accident in a condition where he had no recollection of any of the events surrounding the accident. At the end of 1968, he apparently returned home but has continued to receive treatment intermittently since at the Veterans Administration Hospital at East Orange, New Jersey. It was not until almost two and a half years after the accident that he employed counsel to represent him and to file suit.

The accident itself occurred in the early morning of February 3, 1968, or late night of February 2. The plaintiff, the defendant, and one Ehrenfried had left Fort Bragg in the early evening of February 2 in the car of the defendant. According to the defendant, the three first went to a movie and then spent about three hours at a drive-in located about ten miles from the scene of the accident. While returning to Fort Bragg from the drive-in at about midnight, the defendant swerved off the highway suddenly and crashed into a tree, or, as the defendant described it in his report to the State Highway Department, he "lost control * * * and crashed into a tree".

Counsel for the plaintiff, in seeking to develop the facts of the accident beyond the bare recital given by the defendant in his accident report to the State Highway Department, propounded a number of interrogatories and requests for admission to the defendant. The answers to the interrogatories were prepared and made by defendant's counsel. The plaintiff objected to answers by counsel rather than defendant and demanded that defendant be required to answer personally under oath the interrogatories.¹ He, also, assailed the adequacy of the answers. The District Court, during argument on the motion for a new trial, termed the answers "skimpy" but overruled plaintiff's objections to their adequacy and, while expressing some reluctance, accepted the answers by defendant's counsel.

In defendant's answers, it appeared that "shortly" after the accident, the defendant's insurance carrier had taken written statements from all three occupants of the car and defendant's counsel had had access to such statements in preparing the answers to interrogatories. The answers and admissions of the defendant, for all practical purposes, conceded the defendant's negligence² but made plain that defendant's defense would be based on his plea of contributory negligence.³ This was obvious from the answer of defendant's counsel to an interrogatory that the three occupants of the car, after consuming between them a pint of liquor, went to Steve's Drive-In at about 9:30 on the night of the accident "and drank vodka there until midnight when plaintiff, defendant and John Ehrenfried left Steve's Drive-In to return to Fort Bragg; collision occurred on return trip to Fort Bragg." Counsel for defendant enlarged on this at a pre-trial hearing by stating that the three had consumed two bottles of vodka between 9:30 and the time they left the Drive-In. It thus is clear that the crucial issue in the case revolved about defendant's defense of contributory negligence and about the evidence of drinking among the three occupants of the car during the hours before the accident. The only direct evidence on this issue, as suggested by the parties, was the testimony of the three parties themselves. Unfortunately, the accident had robbed the plaintiff of any ability to testify on the issue. This meant that the defendant and the third occupant, both of whom had given statements to claim adjusters for defendant's insurance carrier "shortly" after the accident, constituted the best, if not the only available fairly contemporaneous evidence on the point.

Under these circumstances, the plaintiff naturally moved to require the defendant to produce, and to permit him to copy, the statements of the defendant and the third occupant of the car taken after the accident.⁴ The defendant objected to this demand "to examine some statements which are part of my work product and file" and argued that the demand was not supported by good cause. He claimed that, absent a showing of good cause, "documents contained in the lawyer('s) work product or files of representatives of the company" (apparently referring to the insurance carrier of the defendant; italics added), were not discoverable. This motion was denied without prejudice to plaintiff's right to renew if the defendant or third occupant "testifies(d) at the trial".⁵

The cause proceeded to trial. Ehrenfried did not appear or testify. During the testimony of the defendant, the plaintiff did not renew his motion to require the production of the defendant's statement as given to the adjuster about three years earlier. The testimony of the defendant was not entirely in line with the statements made in the answers to interrogatories. Submitted to the jury, the case resulted in a verdict for the defendant. From the judgment entered on the verdict, the plaintiff has appealed.

In his appeal, the plaintiff's primary contention is that the District Court erred in sustaining the validity and sufficiency of the defendant's answers to interrogatories as given under oath by his counsel rather than signed by him personally. Rule 33 expressly provides that the answers are to be "by the party served", and are to be "in writing under oath, * * * signed by the person making them * * *." Wright and Miller, Federal Practice and Procedure, vol. 8, sec. 2172, p. 535 (1970) states categorically that under this Rule "Interrogatories addressed to an individual party must be answered by that party." Moore's Federal Practice, vol. 4A, sec. 33.25(1) (1972) is equally positive, putting it that, "The answers must be made in writing under oath, and must be signed by the person making them."⁶ And it was so held, at least by implication, in Jones v. Goldstein (D.C.Md.1966) 41 F.R.D. 271, 274, and it would seem is a necessary corollary of the ruling in Cabales v. United States (D.C.N.Y.1970) 51 F.R.D. 498, 499, aff. 2 Cir., 447 F.2d 1358, and Watson v. Malcom (D.C.Alaska, 1951) 12 F. R.D. 109, 110, 13 Alaska 528. Nor is the requirement of the Rule to be relaxed merely because of difficulties relating to the availability of the party. Cabales v. United States, supra. It is accordingly no excuse, as urged in the District Court by the defendant, that the defendant was living in Michigan and was not readily accessible to defendant's counsel. Counsel was representing defendant's insurance carrier and it is obvious that such carrier could easily have arranged through counsel in Michigan to have had the defendant answer personally "in writing" and "under oath" the interrogatories. For that matter, paraphrasing the language of the Court in Cabales, the Rule makes no exception because the party lives at a distance from his counsel or the place of trial.

Contrary to the authorities discussed supra, the defendant asserts that, "As to whether or not an attorney can answer Interrogatories for the party, the authorities are not clear" and cites note 29, Wright and Miller, supra, at p. 535 in support. In so doing, he disregards entirely the flat statement set forth in the text itself of the authoritative work cited to the effect that the interrogatories "must be answered by that party." And in note 29, which the defendant partially quotes in his brief, Wright and Miller state, in reference to their statement in their text that the party himself must personally sign the answers, that "There is no case squarely in point, though the proposition stated in the text seems supported by Watson v. Malcom, D.C.Alaska 1951, 12 F.R.D. 109 13 Alaska 528." (Italics added) It is of significance that, in quoting note 29 and intimating that the question was considered in doubt by Wright and Miller, the defendant omitted the italicized language, which conveyed an entirely different inference and gives support to the contention of the appellant.

In our opinion, a proper construction of Rule 33, as suggested both by Wright and Miller and by Moore, would have required that the defendant sign under oath the answers to the interrogatories propounded to him by the plaintiff. The cause has, however, been tried and we would be reluctant to reverse simply on this somewhat technical point alone, were there not a more serious error obvious in the record and one that manifestly disadvantaged the plaintiff in properly preparing for trial. The denial of plaintiff's motion to require the defendant to produce the statements given by the defendant and...