Omlie Industries, Inc. v. Industro Motive Corp.

• Decision Date: 19 July 1977
• Docket Number: Docket No. 29498
• Parties: OMLIE INDUSTRIES, INC., Plaintiff-Counter-Defendant-Appellee, v. INDUSTRO MOTIVE CORPORATION, Defendant-Counter-Plaintiff-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 677

257 N.W.2d 677

77 Mich.App. 48

OMLIE INDUSTRIES, INC., Plaintiff-Counter-Defendant-Appellee, v. INDUSTRO MOTIVE CORPORATION, Defendant-Counter-Plaintiff-Appellant.

Docket No. 29498.

Court of Appeals of Michigan.

July 19, 1977.

Released for Publication Oct. 5, 1977.

Dee Edwards, Detroit, for defendant-counter-plaintiff-appellant.

Austin D. Perrotta, Troy, for plaintiff-counter-defendant-appellee.

Before T. M. BURNS, P. J., and BRONSON and SIMON, ^* JJ.

T. M. BURNS, Presiding Judge.

Plaintiff filed suit against the defendant for damages, alleging various acts of misrepresentation, breach of contract and negligence on the part of the defendant in business dealings between the parties. Defendant answered the complaint and filed a counterclaim.

At a pretrial, which defendant had waived, plaintiff was given permission to continue discovery. On July 23, 1973, plaintiff filed interrogatories directed to the defendant. The single item requested of defendant was a list of the names, addresses and telephone numbers of all persons defendant planned to call as witnesses at trial. In a letter dated September 4, 1975, counsel for defendant wrote counsel for plaintiff as follows:

"I have not responded to your most recent interrogatories, because I am still trying to locate some of the persons who were working in the plant the afternoon the day before the fire.

"About the best I can tell you at this time is I expect to furnish you with the information that you are requesting sometime next month."

At trial on May 24, 1976, before the jury was empanelled, counsel for the defendant informed counsel for the plaintiff that defendant intended to call four witnesses. Plaintiff then moved the trial court to strike defendant's answer, grant a default judgment or limit defense witnesses at trial. The basis for the motion was defendant's failure to answer the supplemental interrogatory. The trial court granted plaintiff a default judgment by written opinion dated June 23, 1976. Defendant appeals.

In its opinion, the trial court opined that GCR 1963, 313.4 required granting of plaintiff's motion for default judgment unless a sufficient excuse for the failure to answer was supplied. The trial court found no proper excuse and concluded that the failure to reply was willful and conscious. We find that the trial court abused its discretion in granting default judgment.

GCR 1963, 313.1(2) ¹ provides that application for an order compelling an answer to an interrogatory may be made for refusal of a party to answer the interrogatory. There is no indication in the case at bar that defendant refused to answer any interrogatory. Plaintiff requested, and the trial court entered no order compelling an answer. In fact, the record indicates that the plaintiff never requested an answer after the interrogatory was initially proposed.

GCR 1963, 313.4 ² provides that willful failure to answer interrogatories can result in entry of a default judgment. The reported cases in which this harsh sanction has been imposed, however, involved conscious and repeated failures to answer. See, e. g., Humphrey v. Adams, 69 Mich.App. 577, 245 N.W.2d 167 (1976), Krim v. Osborne, 20 Mich.App. 237, 173 N.W.2d 737 (1969). In the instant case no order compelling answers was requested or...