Montgomery Light & Traction Co. v. Harris

• Decision Date: 30 June 1916
• Docket Number: 3 Div. 220
• Citation: 72 So. 619,197 Ala. 358
• Parties: MONTGOMERY LIGHT & TRACTION CO. v. HARRIS.
• Court: Alabama Supreme Court

72 So. 619

197 Ala. 358

MONTGOMERY LIGHT & TRACTION CO. v. HARRIS.

3 Div. 220

Supreme Court of Alabama

June 30, 1916

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by John Harris against the Montgomery Light & Traction Company. There was judgment for defendant, which judgment was, on motion of plaintiff, set aside, and a new trial ordered, and defendant appeals. Affirmed.

Among the interrogatories propounded was one requiring defendant to give the names of any and all passengers, with their street addresses, that were on the car at the time of the accident of the child. Defendant declined to give the names of the passengers because advised that it was immaterial and irrelevant as concerns the liability of defendant. Charge 1 given for defendant, was as follows:

If the jury find from the evidence that the motorman of the car, as it approached Decatur street, had it under his control, and was not running at an unlawful or dangerous rate or speed, that the motorman was looking ahead, and that the child at the time was a safe distance from the track, and giving no indication that she would turn and go towards the track; that as soon as the child turned or gave any indication of going towards the track, the motorman did all he could to prevent the accident--then plaintiff cannot recover.

Rushton Williams & Crenshaw, of Montgomery, for appellant.

W.S Reese, Hill, Hill, Whiting & Stern, and R.T. Rives, all of Montgomery, for appellee.

THOMAS J.

In the trial of the cause a verdict was rendered in favor of the defendant. The plaintiff subsequently made a motion for a new trial, alleging: (1) That the trial court erred in giving certain written charges requested by defendant; (2) that the court erred in refusing to require the defendant to answer certain of plaintiff's interrogatories; and (3) that the verdict was contrary to the law and the evidence. From the order granting this motion for a new trial, and the judgment thereon, the appeal is taken.

The act approved September 22, 1915, has no application to this appeal, the appeal being from the order of May 14, 1915 granting plaintiff's motion for a new trial, and having been perfected June 17, 1915. Gen.Acts 1915, p. 722.

The interrogatories permitted to be propounded to an adverse party in a civil suit, under the Statutes (Code, § 4049 et seq.), must be pertinent to the issues or the matter in dispute between the parties. The form of plaintiff's motion was within the rule declared for such cases in Russel v. Bush, 71 So. 397. The action of the court thereon was without error.

This court has held that if the interrogatories are not pertinent to the issue or matter in dispute, there is no statutory requirement that answer be made thereto. Code 1907, § 4054; Culver v. Ala. Mid. Ry. Co., 108 Ala. 330, 18 So. 827; Gray v. Perry, 111 Ala. 532, 20 So. 368; Ala. City, Gadsden, & A. Ry. Co. v. Appleton, 171 Ala. 324, 54 So. 638, Ann.Cas.1913A, 1181; St. L. & S.F.R.R. Co. v. Sutton, 169 Ala. 389, 55 So. 989, Ann.Cas.1912B, 366. This right, under the statute, was adverted to in Stearnes v. Edmonds, 189 Ala. 487, 66 So. 714, where Mr. Justice Somerville observes that the party "may, in all cases, secure a statement of the particulars desired," so far as they are known to the opposite party, "by filing interrogatories to his adversary."

The information called for by the question on which the motion is predicated was in no way pertinent to the matter of liability vel non of the defendant to the plaintiff. It was for the purpose of obtaining the names of the witnesses of the opposite party, or its evidence. Such was not within statutory authority. Watkins v. Cope, 84...