Schwartz v. Pub. Serv. Coordinated Transp..

• Decision Date: 11 March 1949
• Citation: 64 A.2d 477
• Parties: SCHWARTZ v. PUBLIC SERVICE COORDINATED TRANSPORT.
• Court: New Jersey County Court

64 A.2d 477

SCHWARTZ

v.PUBLIC SERVICE COORDINATED TRANSPORT.

Essex County Court. New Jersey.

March 11, 1949.

Negligence action by Paul Schwartz against Public Service Coordinated Transport, etc., wherein defendant filed a standard negligence answer setting up contributory negligence and assumption of risk generally, and alleging plaintiff's unlawful action in that regard. On defendant's motion to strike out certain interrogatories.

Decision in accordance with opinion.

Louis C. Jacobson, by Harry R. Fox, both of Newark, for plaintiff.

Carl T. Freggens, by James O. Boyd, both of Newark, and Louis F. Stein, Jr., of Elizabeth, for defendant.

HARTSHORNE, Judge.

Can plaintiff in a negligence action compel defendant to answer interrogatories directed to defendant's allegations in his answer of plaintiff's contributory negligence?

Defendant filed a standard negligence answer, setting up contributory negligence and assumption of risk generally, and plaintiff's ‘unlawful acts' in that regard.

Plaintiff submitted to defendant the following interrogatories:

‘1. Describe with full particulars the negligence of the plaintiff, which, as alleged in the First Defense of the answer, contributed to the accident.

‘2. Describe in detail the careless, negligent and reckless manner in which the plaintiff allegedly conducted himself, as alleged in the First and Second Defenses.

‘3. Describe fully the unlawful acts of the plaintiff as alleged in the Third Defense.

‘4. State the names and addresses of all witnesses known to the defendant to have knowledge of the occurrence set forth in the answer.’

Defendant moved that these interrogatories be struck as improper, on the grounds that the first three called for opinions and conclusions, were irrelevant, and were privileged, and that the last was irrelevant and privileged.

Under the old practice, before the effective date of the new judicial system under the 1947 Constitution, N.J.S.A.-article 11, s 4, par. 14, September 15, 1948-it is clear that such interrogatories were improper. Wigler v. Public Service Co-ordinated Transport Co., 162 A. 878, 10 N.J.Misc. 1077; Billy v. Tatarsky, 165 A. 413, 11 N.J.Misc. 184.

But is the above true under the new Constitution, with its wide and sweeping changes, both in the setup of the courts, and in their practice and procedure, now, subject to law, under the control of the Supreme Court? Constitution, Article VI, Sec. II, Par. 3. This new practice and procedure is now embodied in the new rules, drafted with care by the Supreme Court after consultation with both the bench and bar of the entire state, and after consideration of the judicial methods, both federal and state, in use throughout the entire country. In fact, comparison clearly indicates that the rules governing the new practice and procedure in this state, are based on the Federal Rules of Civil and Criminal Procedure 28 U.S.C.A., 18 U.S.C.A., promulgated by the United States Supreme Court, after similar careful country-wide study.

Both the words and the spirit of the new rules indicate a fundamental change in the philosophy of litigation. No longer is a court to be used as a stadium for the conduct of a game, with all the advantage that accrues in such game to taking one's opponent by surprise. On the contrary, the new rules evidence the decision of the Supreme Court to make the court solely a forum for the final determination of the ultimate truth, that justice may be based entirely thereon, without leaving either one of the parties, or the court itself, in the dark as to any material facts known to either party.

This philosophy we find exemplified in the very rules dealing with discovery, the procedure here in question. These rules in general require that the full unprivileged relevant facts, not some of the facts, shall be made available to all parties, not simply at the trial, but before the trial. This philosphy is evidenced in a recent decision by Chief Justice Vanderbilt, referring to the similar ‘rules concerning discovery and inspection of documents and property,’ in Bead Chain Mfg. Co. v. Smith, N.J. Sup., 62 A.2d 215, 216. The Chief Justice says, for our Supreme Court, ‘The presentation of the truth to the court is paramount; it must proceed unimpeded and unhampered despite claims of prying, where, as here, there exists the means of affording adequate protection against unwarranted intrusion and invasion of the rights of one party by another party.’ Similarly in McClafferty v. Tidewater Oil Co., N.J. Super. A.D. The court there made it clear ‘that the new rules have broken any former monopoly of evidence or of facts leading to the discovery of evidence. * * * The only limitations upon the scope of discovery by depositions are those which the rules expressly recognize. (Rule 3:26-2; Rule 3:30-2.) In particular, objections to questions which lead to the discovery of witnesses or evidence are disqualified specifically by Rule 3:26-2.’

The United States Supreme Court has similarly expressed this same philosophy, as evidenced in the federal rules, on which the New Jersey rules are admittedly based. In Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 389, 91 L.Ed. 451, the court says:

‘Civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. * * * No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise.'

We turn to the words of the pertinent New Jersey rules. Interrogatories under the new rules ‘may relate to any matters which can be inquired into’ on deposition. Rule 3:33. On deposition, if the matter is not privileged, anyone, whether a party or not, may be examined regarding any matter whether material or not, ‘which is relevant to the subject matter involved in the pending action.’ Rule 3:26-2. Not only so, but, ‘It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.’ Ibid.

Indeed, the very objections which previously lay to plaintiff's attempts to obtain data as to defendant's charge of contributory negligence, are now expressly overruled, to use the term in its doubly applicable sense. Previously, our courts prevented a plaintiff from obtaining such discovery, since contributory negligence was a part, not of his case, but of that of defendant. The new rules, however, expressly state that discovery thereunder may be had as to a matter ‘whether it relates to the claim or defense of the examining party or to the claim or...