Papen v. Suburban Propane Gas Corp.

• Decision Date: 27 April 1967
• Citation: 229 A.2d 567
• Parties: George F. PAPEN, Howard W. Papen and John H. Papen, trading as Papen Bros., a partnership, Plaintiffs, v. SUBURBAN PROPANE GAS CORPORATION, a corporation of the State of New Jersey, Defendant.
• Court: Delaware Superior Court

Page 567

229 A.2d 567

George F. PAPEN, Howard W. Papen and John H. Papen, trading as Papen Bros., a partnership, Plaintiffs, v. SUBURBAN PROPANE GAS CORPORATION, a corporation of the State of New Jersey, Defendant.

Superior Court of Delaware, Kent County.

April 27, 1967.

Harold C. Schmittinger, Dover, for plaintiffs.

James T. McKinstry, Wilmington, for defendant.

OPINION

O'HORA, Judge.

Plaintiffs' action here grows out of an explosion and fire on plaintiffs' property. Plaintiffs contend that defendant, a company which supplied propane gas to the property, was responsible for the installation of the gas system in the building in question and for the turning on of the gas and checking the system, was negligent in a number of possible ways allowing gas to escape and accumulate on the premises. Defendant has interposed a general denial to plaintiffs' allegations of negligence. There are no affirmative defenses asserted.

Plaintiffs have served interrogatories upon defendant to which defendant has interposed objection to certain of them. In connection with defendant's stated objections defendant has filed an affidavit of the Secretary of defendant corporation.

Certain of the interrogatories objected to are here considered together and read as follows:

'15. Describe the chemical composition of the gas furnished for use at the Rapen Bros. Labor Camp on the date of explosion.'

'16. Was an odorant used in the gas? If so, state:

b. The chemical composition of the odorant; and

c. The ratio between the quantity of the odorant used and the volume of gas odorized;'

'16. ^* What is the explosive range of the gas in terms of percentage of gas-air mixture?'

'17. What color flame does the gas normally produce when it is burning?'

'18. What color flame or flash would an explosion of the gas produce?'

To answer these interrogatories it is clear from the uncontradicted affidavit of the Secretary that defendant would be required to conduct an analysis of the gas used which, in turn, would involve obtaining the results of independent expert research. Ordinarily a party is not required to engage in such activity as an aid to the preparation of an opponent's case. Occasionally an exception to such rule is permitted upon a showing that such information is not available to the seeking party. No such showing has been attempted here. I am of the opinion that proper application of the provisions of Rules 26(b) and 33 would not require answers to such interrogatories in the circumstances here presented. 2A Barron & Holtzoff, § 768, pps. 321--324. Furthermore, the essential question here seeks the opinions of defendant as to the opinions of scientific experts, as yet not employed. These interrogatories, in this sense, go even further than those successfully objected to in Williams v. Morris, 223 A.2d 390 (Super.Ct.1967).

The next interrogatory objected to reads, as follows:

'16. (e) Whether passage of gas through earth, wood or concrete might partly filter out the odorant.'

The Secretary's affidavit heretofore mentioned points out that the gas in question did not pass through earth, wood or concrete. Nor have plaintiffs contended that defendant's negligence alleged is in any way connected with the use or non-use of earth, wood or concrete as a filtering agent. It is difficult to see how these interrogatories have any bearing upon the subject matter involved in the litigation, and, further would require defendant to engage in independent expert research to obtain answers. Objections to such an interrogatory must be sustained for these further reasons. Moore's Federal Practice (Vol. 4), § 3315, p. 2300.

Plaintiffs in support of the relevancy of such an interrogatory as No. 16(e) has cited Judge Pearson's learned opinion in Blaustein v. Standard Oil Co., 6 Terry 198, 70 A.2d 716 (1949). Judge Pearson in that case indicated that an interrogatory should not be prohibited unless lack of relevancy is clear beyond a reasonable doubt. It is my opinion that the interrogatory here should also be excluded on the very standard used by Judge Pearson as well as for the other reasons stated.

'20. Do you contend that the explosion and fire resulted from some cause other than escaping gas? If so, state each fact or theory on which you rely to support the contention.'

'21. State each fact not enumerated in your preceeding answers to interrogatories on which you rely to support the contention that plaintiff is not entitled to recover against you in this action.'

Plaintiffs in support of their right to pose the above two interrogatories rely largely upon the holding in Pfeifer v. Johnson Motor Lines, 8 Terry 191, 89 A.2d 154 (1952). The Pfeifer case does stand for the proposition that a party is entitled through interrogatory to seek the basis for the contentions of a party. However, the extent to which that holding is confined was delineated by then Judge Herrmann, author of the Pfeifer opinion, in Dayson v. Great Northern Oil Company, 49 Del. 411, 118 A.2d 361 (Super.Ct.1955), wherein it was held that an opinion or conclusion of a party may be obtained by interrogatory directed to an opponent only when the answers are necessary for a statement of a contention, or would serve to 'narrow, clarify or simplify the issues' raised by specific contentions.

In the present case, by interrogatories 20 and 21, plaintiffs seek to discover defendant's contentions, and their basis, rather than simply the basis of contentions already made. Defendant in entering a general denial to plaintiffs' assertions of negligence has offered no specific or affirmative contentions at all. Plaintiffs are thus attempting to obtain opinions and conclusions from defendant, otherwise not permitted, through the guise of directing the form of the questions at defendant's 'contentions'. As Judge Herrmann indicated in the Dayson opinion the ruling in Pfeifer was 'a liberal and advanced concept under the discovery practice' and no compelling reason appears why it should be extended to the point urged here by plaintiffs.

'19. Did an explosion occur at the Papen Bros. Labor Camp on July 2, 1963? If so, state:

a. The location in which the explosion occurred, and if a diagram is attached to your answers to these interrogatories, indicate the location on this diagram using an appropriately labeled symbol;

b. The cause of the explosion;'

The above interrogatory clearly seeks conclusions and opinions which could be formulated only after extensive investigation. These interrogatories do not seek information relative to whether or not such investigations may have been conducted (which might well lead to factual information properly available to plaintiffs) but simply seeks the conclusions and...