State ex rel. Daggett v. Gessaman

• Decision Date: 25 April 1973
• Docket Number: No. 72-569,72-569
• Citation: 34 Ohio St.2d 55,295 N.E.2d 659,63 O.O.2d 88
• Parties: , 63 O.O.2d 88 The STATE ex rel. DAGGETT, Appellant, v. GESSAMAN, Judge, Appellee.
• Court: Ohio Supreme Court

Page 55

34 Ohio St.2d 55

295 N.E.2d 659, 63 O.O.2d 88

The STATE ex rel. DAGGETT, Appellant, v. GESSAMAN, Judge, Appellee.

No. 72-569.

Supreme Court of Ohio.

April 25, 1973.

Syllabus by the Court

1. Under the discovery provisions of the Ohio Civil Rules, the court has a discretionary power not a ministerial duty.

2. An interlocutory order, overruling a motion to compel answers to interrogatories involving opinions, contentions, and legal conclusions, is not a final appealable order.

3. Mandamus cannot be utilized as a substitute for an appeal from an interlocutory order.

James H. Daggett, relator-appellant, is the plaintiff in a civil suit for personal injuries and damages, pending in the Common Pleas Court of Franklin County. The respondent-appellee is a Judge of the Court of Common Pleas to whom that case has been assigned.

During the course of the discovery process in the civil action, the following interrogatories were served by counsel for the plaintiff upon counsel for the defendant:

1. 'Were you negligent with respect to this accident?

2. 'Was your negligence a proximate cause of this accident?

3. 'Was the accident a proximate cause of the plaintiff's injuries?'

The response to each of those interrogatories consisted solely of the word, 'Object.' Plaintiff filed a motion for an order compelling answers to the interrogatories pursuant to Civ.R. 37(A)(2), which motion was overruled. Thereafter, this action in mandamus was instituted in the Court of Appeals for Franklin County, seeking a peremptory writ requiring the respondent to order answers to the interrogatories.

The Court of Appeals, on motion of respondent, dismissed relator's complaint in mandamus for the reason that relator has available other discovery remedies not yet pursued, and therefore he has an adequate remedy at law. Relator has appealed that judgment to this court as a matter of right.

Volkema, Post & Pees and Randall W. Pees, Columbus, for appellant.

Crabbe, Brown, Jones, Potts & Schmidt, William L. Schmidt and George C. Smith, Columbus, for appellee.

POTTER, Justice.

The interrogatories which precipitated this action are framed in conclusory terms, and the answers thereto involve 'legal conclusions' or 'ultimate facts.' The alleged tort-feasor was asked if he was negligent, whether his negligence was the proximate cause of the accident, and whether the accident was the proximate cause of the plaintiff's injury. Ordinarily, the posture of these ultimate issues would be determined by the defendant's answer to the allegations of the complaint. However, the interrogatories were apparently propounded in an effort to require the defendant to concede the existence of a prima facie case of negligence and thus reduce the triable issues.

The purpose of the liberal discovery policy contemplated by the Ohio Rules of Civil Procedure is the narrowing and sharpening of the issues to be litigated. To this end, Ohio Civ.R. 33(B), which was patterned after Federal Rule, F.R.Civ.P. 33(b), as amended in 1970, ^* provides that, 'an interrogatory otherwise proper is not objectionable merely because the answer to the interrogatory involves an opinion, contention, or legal conclusion * * *.'

Relator contends in his complaint and on appeal that the granting of his motion for discovery was ministerial, that the failure to so grant was a gross abuse of discretion and that he has no adequate remedy at law.

A discovery order is not subject to immediate view and an abuse of discretion does not of itself render final an interlocutory order. Klein v. Bendix Westinghouse (1968), 13 Ohio St.2d 85, 234 N.E.2d 587. Likewise, 'mandamus cannot be used as a substitute for appeal or create an appeal from an order which is not a final order, which relator seeks to do in this action.' State ex rel. Overmeyer, v. Walinski (1966), 8 Ohio St.2d 23, 24, 222 N.E.2d 312. See, also, Chemical and Industrial Corp. v. Druffel (C.A. 6, 1962), 301 F.2d 126; Ex parte Fahey (1947), 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041; Roche v. Evaporated Milk Assn. (1943), 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185.

In discovery practices, the trial court has a discretionary power not a ministerial duty. See Newburg Petroleum Co. v. Weare (1887), 44 Ohio St. 604, 9 N.E. 845; Borden Co. v. Sylk (C.A.3, 1969), 410 F.2d 843; Greyhound Lines v. Miller (C.A.8, 1968), 402 F.2d 134; Chemical and Industrial Corp. v. Druffel, supra; 18 Ohio Jurisprudence 2d 45 Discovery and Depositions, Section 41; Civ.R. 26(B) and Civ.R. 33(B). Civ.R. 33(B) provides, in part:

'* * * but the court may order that such an interrogatory be answered at a later time, or after designated discovery has been completed, or at a pretrial conference.'

Respondent has exercised his discretion and he cannot be required to now exercise it in a manner satisfactory to relator. State ex rel. Keller v. Waite (1904), 70 Ohio St. 149, 153, 71 N.E. 286; State ex rel. DeVille Photography v. McCarroll (1958), 167 Ohio St. 210, 147 N.E.2d 254. Paraphrasing the apt language in Borden Co. v. Sylk, supra, every interlocutory order involves to some degree a potential loss. That risk must...