Schermerhorn v. Contardi, 998--III

• Decision Date: 13 March 1974
• Docket Number: No. 998--III,998--III
• Citation: 10 Wn.App. 736,520 P.2d 188
• Parties: Darcy D. SCHERMERHORN, Respondent, v. Hugo A. CONTARDI, Petitioner.
• Court: Washington Court of Appeals

Page 736

10 Wn.App. 736

520 P.2d 188

Darcy D. SCHERMERHORN, Respondent, v. Hugo A. CONTARDI, Petitioner.

No. 998--III.

Court of Appeals of Washington, Division 3.

March 13, 1974.

James S. Scott of Smith, Scott & Hanson, Yakima, for petitioner.

G. William Baker of Fortier & Baker, Yakima, for respondent.

BARNETT, Judge. ^*

This case arises out of the initiation of legal action against the petitioner by the respondent for alienation of affections and criminal conversation of the respondent's wife. To the complaint, the petitioner answered generally denying the allegations of the complaint. The defendant signed the verification. This case is before the court on a writ of certiorari from the trial court's ruling regarding the petitioner's right to claim the privilege against self-incrimination in pretrial discovery proceedings, and also from the court's ruling on respondent's motion for summary judgment as to liability on the issue of criminal conversation.

In the course of the pretrial discovery procedures, respondent requested the right to take the petitioner's discovery deposition. At said deposition, petitioner refused to answer all questions regarding the relationship with respondent's wife on the grounds that the answers to these questions might tend to incriminate him. Subsequently, respondent on October 3, 1973 made a 'Motion to Compel Discovery and For Terms.' The court found that the defendant-petitioner herein waived his privilege of self-incrimination by filing an answer to plaintiff's complaint and compelled the defendant to answer all questions relating to his denials of allegations in plaintiff's complaint. Hence, the sole question before the court is whether or not the filing of an answer and the verification which was signed by the defendant waives his right to claim privilege against self-incrimination. We disagree with the ruling of the trial court.

Although our research has disclosed no Washington decision which is in point, we hold that the following cases sustain our view that there has been no waiver.

In Southbridge Finishing Co. v. Golding, 208 Misc. 846, 143 N.Y.S.2d 911 (S.Ct. 1955), the court held that the fact that defendant in a civil action served a verified answer which denied plaintiff's charges of crime was not a waiver of defendant's privilege against self-incrimination even though the answer added to denials affirmative defenses which did not contain incriminating admissions.

In Southbridge the court said, at page 913:

To the uninitiated and the naive and also to some other people whom it would not occur to me to so describe, it is manifestly and necessarily inconsistent for a man to assert that he is innocent and yet claim that his answers to questions may tend to incriminate him. In their view, nothing that an innocent man truthfully says in answer to any question may tend to incriminate him, and, therefore, the assertion of innocence necessarily demonstrates that the claim of possible incrimination is not made in good faith and conversely, the claim of possible in-incrimination is necessarily an admission of guilt. But as many courts have pointed out in numerous cases over a long period of time, that bit of logical formalism has no relation to reality.

It is of course well settled law that no inference of guilt can be drawn from an assertion of the privilege; and I am of the opinion that, except in occasional instances under comparatively rare circumstances, such an inference is just as inadmissible in the realms of morals, logic and justice as it is in a court room.

Rarely, if ever, can the guilt or...