State ex rel. Mid-America Pipeline Co. v. Rooney

• Decision Date: 06 December 1965
• Docket Number: MID-AMERICA,No. 24303,24303
• Citation: 399 S.W.2d 225,19 A.L.R.3d 1126
• Parties: STATE ex rel.PIPELINE COMPANY, a Corporation, Relator, v. James S. ROONEY, Judge of Division Number One of the Circuit Court of Clay County, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 225

399 S.W.2d 225

19 A.L.R.3d 1126

STATE ex rel. MID-AMERICA PIPELINE COMPANY, a Corporation, Relator, v. James S. ROONEY, Judge of Division Number One of the Circuit Court of Clay County, Missouri, Respondent.

No. 24303.

Kansas City Court of Appeals, Missouri.

Dec. 6, 1965.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 7, 1966.

Robert E. Coleberd, Hale, Coleberd, Kincaid & Waters, Liberty, for relator.

Sevier & Turnage, by Robert Sevier, Liberty, for respondent.

HOWARD, Judge.

This is a proceeding on an original petition for writ of prohibition filed in this court. A suit was filed in the Circuit Court of Clay County, Missouri, by Wade Shanks, as plaintiff, against Mid-America Pipeline Company, a corporation, as defendant, seeking damages for injuries to plaintiff's land and property occasioned by the construction of a pipeline by defendant across plaintiff's land. The relator, defendant below, had theretofore condemned a right-of-way for such pipeline across plaintiff's land, and in such condemnation proceedings, it was recited that relator covenanted 'to pay seperately to (plaintiff below) present or future damages, if any, caused to crops, fences, grasses, surface of land or other property belonging to (plaintiff below), if such damage result from the construction, operation or maintenance of said pipelines.'

In the suit below the plaintiff Wade Shanks served upon relator, defendant below, 21 interrogatories, some of which contained sub-divisions, consisting of a total of 39 questions, calling for answers giving detailed information as to the time, place and manner of entering upon plaintiff's property, excavating and constructing the pipeline, and the nature and description of equipment used in such construction. Relator filed its answer under oath to all the interrogatories, as follows:

'That defendant employed the Williams Brothers Company, a corporation, as an independent contractor to construct the pipe line across plaintiff's farm; that as such, said Williams Brothers Company constructed said pipe line using its own equipment and crew; that this defendant did not have any part nor did it supervise or direct the construction of said pipe line across plaintiff's farm, and does not have any information or knowledge in regard to said construction of said pipe line which would enable it to answer plaintiff's interrogatories heretofore submitted.'

Thereafter, plaintiff filed a 'Motion to Compel Answers to Interrogatories' claiming that the above quoted answer was inadequate and amounted to no answer at all. Such motion to compel answer was sustained by the trial court, and relator here is seeking our writ of prohibition to prohibit enforcement of such order. Relator contends that the order requiring further answers to the interrogatories is in excess of the trial court's jurisdiction because (1) the interrogatories call for information not available to the corporate relator, but which is within the knowledge of the contractor who constructed the pipeline under contract with relator, and who is not an agent of relator; (2) that relator has no means of obtaining answers to the interrogatories, and (3) that if the relator is compelled to answer such interrogatories, such answers would constitute hearsay and relator should not be required to give an answer, under oath, based on hearsay.

Thus we have a situation where the interrogated party has answered under oath that the work about which the interrogatories inquired was performed by another corporation under contract and not by the party to the litigation. The corporate party to the litigation has answered under oath that it 'does not have any information or knowledge in regard to said construction'. The question for our determination is whether or not the trial court is exceeding its jurisdiction in ordering, and attempting to enforce its order, that relator answer such interrogatories.

Civil Rule 56.01 V.A.M.R. provides that interrogatories to a corporate party shall be answered 'by any officer or agent, who shall furnish such information as is available to the party' (emphasis supplied). We must therefore determine whether or not the information required to answer the interrogatories 'is available' to the corporate relator within the meaning of this rule.

The truthfulness of the answer given by relator is not controverted by the pleadings in this case, and therefore we will assume that it is true. State ex rel. McCubbin v. McMillian, Mo.App., 349 S.W.2d 453. Respondent contends that corporate relator in the condemnation of its right-of-way in effect assumed a nondelegable duty to compensate plaintiff below for damages to his property, resulting from the construction of the pipeline along such right-of-way; that relator can not escape such liability by contracting with another for the construction of the pipeline and that, therefore, the Williams Brothers Company can not be an independent contractor, but must be an agent of and under the control of relator. Relator counters that Williams Brothers is, in fact, an independent contractor and not an agent and not under the control of relator. We do not believe that the issue thus presented, and the arguments in support thereof, are determinative of this action, and, therefore, we will make no attempt to determine which brand should be placed on the Williams Company. We are not now dealing with a question of relator's liability for any damage that may have been done or with an attempt by relator to avoid such liability. Our only concern is with a question as to the proper scope of discovery and this issue must be determined by the fact situation presented and not by the label stamped upon the Williams Company.

The parties have not cited, and independent research by the writer has not revealed, any Missouri case which would govern the determination of the question here presented. In this situation and since our present rules of discovery, and particularly Civil Rule 56.01 relating to interrogatories, are based upon and taken from the Federal Rules of Civil Procedure, decisions by the federal courts construing their rules may be persuasive even though not controlling. It should be noted that the applicable provisions of our Civil Rule 56.01 are identical with Federal Rule 33.

No federal case has been found which would conclusively rule the point in question, but we do believe that the principles enunciated in the cases hereinafter discussed lead to the correct conclusion. In the case of Galanos v. United States, D.C., 27 F.Supp. 298, cited by relator, the suit was against the government on a policy of G.I. insurance. It actually involved a request for the production of documents rather than answers to interrogatories. The court held that the government must produce records of certain VA hospitals concerning the plaintiff, but that since the government did not control private corporations which had employed the plaintiff, from time to time, during the period in question, it could not be required to produce the employment records of such private corporate employers. It appeared that the government did in fact have either copies of such records, or information contained in such records, but the court did not require the government to...