Nehring v. Smith

• Decision Date: 13 November 1951
• Docket Number: No. 47885,47885
• Parties: NEHRING v. SMITH et al.
• Court: Iowa Supreme Court

Page 831

49 N.W.2d 831

243 Iowa 225

NEHRING v. SMITH et al.

No. 47885.

Supreme Court of Iowa.

Nov. 13, 1951.

Rehearing Denied Jan. 11, 1952.

Willoughby, Strack & Sieverding, of Grundy Center, Lundy, Butler & Lundy, and Donald C. Wilson, all of Eldora, for appellant.

Swisher, Cohrt & Swisher, of Waterloo, and Ruppelt, Kimball & Engelkes, of Grundy Center, for appellee.

GARFIELD, Justice.

On April 9, 1948, about 8 p. m., decedent, a girl nearly 17, was riding as a guest of defendant Gerald Smith, the driver, in his father's automobile. While traveling west on paved primary highway 58 the Smith car went from the north (right) to the south (left) side of the highway and collided with an automobile going east. Decedent's death resulted from the collision.

In this action against the two Smiths plaintiff-administratrix claims the collision was caused by reckless operation of the Smith automobile within the meaning of section 321.494, Codes 1946, 1950, I.C.A. Defendants' motion to direct verdict at the close of plaintiff's evidence was sustained on the ground proof of reckless operation was insufficient. Plaintiff's appeal asserts five errors.

Since it is admitted the automobile was driven with the father's consent he would be liable for decedent's death if caused by reckless operation of the car. Code sections 321.493, 321.494, I.C.A.; Harvey v. Clark, 232 Iowa 729, 732, 6 N.W.2d 144, 145, 143 A.L.R. 1141, 1143, and citations.

I. After defendants' answer was filed in which reckless operation of the car was denied plaintiff filed 12 interrogatories to be answered by defendant Gerald Smith. Defendants' objections to the interrogatories were sustained on the ground it was not shown answers were necessary to enable plaintiff adequately to prepare for trial and the statement of plaintiff's counsel to that effect filed with the interrogatories was an opinion and conclusion.

Rule 121, Rules of Civil Procedure, under which the interrogatories were filed, states '* * * a party may, after the appearance of an adversary and after filing his own pleading, file * * * not over thirty numbered interrogatories to be answered by such adversary, if they are necessary to enable the interrogating party adequately to prepare for trial.'

As defendants concede, the rules as to discovery, including 121, are to be liberally interpreted. See Hitchcock v. Ginsberg, 240 Iowa 678, 679, 37 N.W.2d 302, 303; Chandler v. Taylor, 234 Iowa 287, 298, 12 N.W.2d 590, 595, 596. See also Vincent v. Van Blooys, 263 Mich. 312, 248 N.W. 633. 'The modern trend has been to broaden the scope of discovery to give litigants access to all the material facts. (Citations.)' Hitchcock v. Ginsberg, supra.

We think the court should have required answers to these interrogatories. They called for information relevant and material to the case. They asked Gerald to state whether he saw the other automobile and if so where he was with reference to the place of collision when he first saw it, the course of the Smith car from the time he first saw the other automobile until the time of collision, his rate of speed, whether he applied his brakes and some other matters.

It is true plaintiff was entitled under rule 121 to answers to these interrogatories only if they were 'necessary to enable' her 'adequately to prepare for trial.' 27 C.J.S., Discovery, § 30, page 46, states: 'The term necessary as used in a statute providing that the examination must be necessary does not mean indispensable or absolutely necessary but it is used in the sense of needful, and an examination may be granted where it will greatly facilitate the trial.' Getchell & Martin Lumber & Mfg. Co. v. Des Moines Union Ry. Co., 115 Iowa 734, 737, 87 N.W. 670, 671, says 'The word (necessary) is often employed as somewhat analogous to 'expedient' or 'appropriate."

We are not disposed to give a narrow meaning to 'necessary' as used in rule 121. It is significant the rule authorizes interrogatories where necessary to enable a party 'adequately to prepare for trial.' The word 'adequately' broadens the meaning of 'necessary.'

We cannot agree with defendants and the trial court that plaintiff failed to make any showing answers to the interrogatories were necessary for adequate preparation for trial. Defendants say they do not contend a showing of necessity by affidavit is required but argue that facts must be presented to the trial court to enable it to determine the necessity.

We think sufficient necessity for answers to the interrogatories appears from the petition, the answer, the interrogatories and the admitted fact that the only occupant of the Smith car other than Gerald was killed by the collision. The interrogatories, which it seems to be conceded were signed by plaintiff's counsel, recite that answers thereto 'are necessary to enable (her) adequately to prepare for trial.'

Rule 80, R.C.P., provides, 'Counsel's signature to every motion or pleading shall be deemed his certificate that there are good grounds for making the claims therein, * * *.' We have held an application for production of books and papers under our rules relating to discovery is a motion within the meaning of rule 80. Chandler v. Taylor, supra, 234 Iowa 287, 293, 12 N.W.2d 590, 594. The interrogatories and accompanying statement are at least in the nature of a motion.

II. The trial court sustained defendants' motion to suppress the deposition of Purvis, deputy sheriff at the time of the collision, on the ground they were prevented from finishing their cross-examination of him.

Twelve days before the trial this deposition was taken at Purvis' home on oral examination. He had suffered a stroke and was not well. On direct examination he told of his call to the scene of the collision soon after it occurred, identified photographs of the two cars involved in the wreck, described their position and the location of oil marks on the south side of the pavement, told of tire marks leading about 50 feet from the Smith car to the north side of the paving and a cut and blow-out of its right front tire, said he found nothing wrong with its steering mechanism, and described weather conditions which were about normal.

After 120 questions were answered on cross-examination (about as many as on direct) Purvis became ill, was unable to continue and remained so to the time of trial. Taking the deposition was evidently too much of an ordeal for him in his condition.

As a rule the direct examination should be excluded where there is not adequate opportunity for cross-examination. See Kemble v. Lyons, 184 Iowa 804, 169 N.W. 117; Womochil v. Peters, 226 Iowa 924, 930, 285 N.W. 151; 58 Am.Jur., Witnesses, section 612; 70 C.J., Wtnesses, section 788.

There is authority for the view that a deposition may be admitted where the direct examination has been completed and death or sickness of the witness, without fault on either side, prevents cross-examination. 26 C.J.S., Depositions, § 93, page 936; St. Charles Savings Bank v. Denker, 275 Mo. 607, 205 S.W. 208, 211. The better rule seems to be that the deposition should be received where cross-examination has so far progressed that its purposes have been substantially accomplished. See 5 Wigmore on Evidence, Third Ed., section 1390, page 111; Fuller v. Rice, 4 Gray 343, 345, 70 Mass. 343, 345.

Failure to complete the cross-examination due to the cross-examiner's consent or fault does not render the deposition inadmissible. 5 Wigmore, Third Ed., section 1390. Plaintiff argues that Purvis' inability to complete the deposition is chargeable to repetitious cross-examination and needless objections by defendants' counsel. While the cross-examination was exacting and somewhat repetitious we think defendants' counsel were not responsible for the failure to complete it.

Although the trial court might have received the Purvis' deposition we are not persuaded it was an abuse of discretion to exclude it. At least two matters brought out on direct examination (the cut and blow-out of a tire and the condition of the steering mechanism) had not been touched upon in cross-examination and the witness was being asked about the tire marks leading from the Smith car when he became ill. We cannot say the cross-examination was substantially complete.

Plaintiff offered the entire deposition, not merely the parts upon which the cross-examination seems to have been completed, so we have no occasion to consider whether such parts were admissible.

Since most of the matters shown by the deposition were brought out by other evidence its exclusion has little bearing upon the vital question whether the issue of reckless operation of the Smith car should have been submitted to the jury.

III. Plaintiff complains of the striking of her testimony as to a claimed admission by defendant Gerald Smith. Plaintiff testified that two or three weeks after her daughter died she talked to Gerald when he came to her home and told her what he said he remembered of the fatal ride. This record follows:

'Q. Did you talk to him later? A. Yes, I talked to him later, and we were talking about the accident again, and he said he would settle with us if it wasn't taken care of.

'Q. Where was that? A. In my own home too.

'Q. Did you see----

'Mr. Cohrt (defendants' counsel): Now just a minute, I want to get that answer too. (Last two answers read by reporter.)

'Mr. Cohrt: I move to strike the answer as incompetent and immaterial, nothing to do with the issues.

'The Court: Sustained.'

It is conceded the court intended to strike the answer first quoted and it was not afterwards considered part of the record.

It will be noticed no objection was made to either question quoted and no excuse made for failure to object--as that the answer was given before counsel had time to object or was not responsive to the question. The motion to strike 'the answer' was not made until after the second question had been answered and a third question...