State ex rel. Houser v. Goodman
| Citation | 406 S.W.2d 121 |
| Decision Date | 01 September 1966 |
| Docket Number | No. 8614,8614 |
| Parties | STATE of Missouri ex rel. William James HOUSER, Relator, v. The Honorable Arthur U. GOODMAN, Jr., Judge of the Circult Court of Dunklin County, Missouri, Respondent. |
| Court | Court of Appeal of Missouri (US) |
Ford, Ford & Crow, Wendell W. Crow, Kennett, for relator.
McHaney, Billings & Welman, William O. Welman, Kennett, for respondent.
PRELIMINARY WRIT OF PROHIBITION MADE ABSOLUTE
Respondent, Judge of the Circuit Court of Dunklin County, issued the herein complained-of order in a damage suit filed by Erma Brumley against William James Houser, the relator. The circuit court action ensued from an accident involving automobiles operated respectively by Mrs. Brumley and relator and, according to plaintiff's petition, caused her to suffer 'painful and disabling injuries' to most every particle of her body, which injuries 'are permanent and progressive in nature' and have caused, inter alia, diminution of 'her ability to work, labor and enjoy life.'
Relator propounded interrogatories to be answered by Mrs. Brumley. Of the thirteen interrogatories posed, eight were followed by subinterrogatories (two to fifteen in number) which required response only if the principal question was answered in the affirmative. Summarily, the interrogatories inquired concerning Mrs. Brumley's accident injuries, identity of persons and institutions which furnished medical care, her employment, earnings, and the expenses incurred because of the casualty. The interrogatories also sought information of 'other automobile accidents' and data as to 'any medical care or treatment' plaintiff had received in the ten years before the accident. Interrogatory numbered nine (which followed the inquiry of 'other automobile accidents') queried:
Mrs, Brumley filed her objections 1
Thereafter respondent entered his order that:
Relator brings this origial proceeding in prohibition seeking restraint on the enforcement of the last two sentences of respondent's order. Irrespective of jurisdictional limitations placed upon this court in appellate processes (which are not here involved), we have concurrent jurisdiction with the Supreme Court as to all 'original remedial writs,' including prohibition. V.A.M.S. Constitution, Article V, Sec. 4; State ex rel. City of Mansfield v. Crain, Mo.App., 301 S.W.2d 415(2); State ex rel. City of Creve Coeur v. Weinstein, Mo.App., 329 S.W.2d 399, 401.
On July 21, 1966, relator served respondent with a copy of his petition for writ of prohibition herein, together with written notice said petition would be filed in this Court on July 28, 1966, which was done. Thereafter, we initially issued a preliminary writ in this case prohibiting respondent from enforcing the last sentence of his order and set August 19, 1966, as the date for him to appear and show cause, if any he had, why the preliminary writ should not be made permanent or an immediate rule in prohibition should not be ordered. Subsequently we were informed the Circuit Court case had been set for trial on August 24, 1966. This setting date has been confirmed by respondent in his return to the preliminary writ, and he also states the setting was made on July 25, 1966. As it appeared to us relator would not have a reasonably sufficient time to depose plaintiff unencumbered by respondent's order after this Court could determine this matter and before the circuit court case was set for trial, we issued an amended preliminary writ wherein respondent was additionally prohibited from trying said circuit court case, from setting it for trial, and from exercising any further jurisdiction in that matter until the further order of and final judgment of this Court. In respondent's return he has admitted the factual allegations of relator's petition, including the entry of the order, supra, but has denied, among other things, he has done anything to oppress relator or that the interval between August 19, 1966 (assuming we could have determined this matter on that date), and August 24, 1966, was an insufficient time for relator to depose plaintiff unshackled by his order. Respondent did not file suggestions in opposition to issuance of the initial or amended preliminary writ.
The Rules of Civil Procedure afford discovery methods designed to eliminate elements of surprise often employed as sandbags to dam the flow of information and impede the disclosure of truth. Discovery should provide a party with access to anything relevant to the proceedings and subject-matter of the case not protected by privilege. 2 Regardless of this and other multitudinous pronouncements of a similar ring, and the fact 'The supreme court rules are quite clear and * * * have been further construed and defined by decisions of the appellate courts of this state,' such courts continue 'to receive an inordinate and apparently unnecessary number of applications to regulate the use of interrogatories' and other discovery procedures. State ex rel. Hof v. Cloyd, Mo. (En Banc), 394 S.W.2d 408, 411. Perchance this adversity springs from a misunderstanding by trial courts and counsel as to the impact of numerous denials of applications for remedial writs. That peremptory writs have been used to review interim orders in discovery cases does not mean these discretionary writs will or should issue in each case where the court opines the trial court's interim order was erroneous. Unless there appears no other wholly adequate means of redress, the parties in most cases (as is true of most other interim orders) must be confined to a review of the order on appeal from the final judgment. Appellate courts cannot serve as a scullery to scour every misstep of the trial courts. Ergo, a trial court may not always take solace in the fact a writ is denied because refusal of such writs does not, per se, mean the trial court is error-free and counsel has wrongfully employed the discovery device. 3 These asides are wishfully supplied for the edification of both trial lawyers and trial courts, coupled prayerfully with a desire they may also serve both again as a revelation of the purposes of discovery procedures and be used accordingly. 'Whether questions are proper in form anm substance is,' in the first instance, * * *' State ex rel. Hof v. Cloyd, supra, Mo. (En Banc), 394 S.W.2d 408, 411--412.
The reference made to interrogatories under Rule 56.01(a), V.A.M.R., has a bifold aspect, id est, (1) the number of interrogatories in a given set, and (2) the number of sets of interrogatories. Mrs. Brumley's objections to relator's interrogatories were confined to the first aspect by claiming 'the number of interrogatories is such as to constitute oppression.' Whne she married her objections to the interrogatories with a prayer for a protective order under Rule 57.01(c), it was required that such application for order be made by written motion (Rule 74.02, V.A.M.R.) wherein she obligated herself to 'state with particularity the grounds therefor' and to set forth 'the relief or order sought.' Rule 55.30(a) V.A.M.R. She did neither. Had respondent found, in fact, the number of interrogatories in the one set proffered to be oppressive, the expected ruling would be for the court to sustain the objections to relator's interrogatories in their entirety and thus leave to relator the burden of thereafter filing another set of interrogatories containing a reasonable number of questions, or pursuing his search for information via deposition, or down other paths of discovery. Stephen Amusement, Inc. v. Paramount Film Distributing Corp., S.D.N.Y., 4 F.R.Serv.2d 33.353, Case 2. That respondent did not rule on Mrs. Brumley's objections in the expected manner and did not state the number of inquiries constituted oppression, permits us to infer respondent considered the quantity of questions imposed no undue burden on Mrs. Brumley. No spectific objections were lodged against interrogatories numbered 9 to 9--C. What was said by the Supreme Court in State ex rel. Hudson v. Ginn, Mo. (En Banc), 374 S.W.2d 34, at page 37, would indicate these questions were germane to the subject matter involved. Nevertheless, we do not undertake to speculate why respondent singled out these interrogatories in the penultimate sentence of his order. What has previously been observed would indicate relator is not without other or similar procedures to secure the information sought by interrogatories 9 to 9--C, or to secure redress by other means if respondent did, in fact, err in his ruling relative...
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