Strecker v. Devine, L--5052
| Decision Date | 09 January 1951 |
| Docket Number | No. L--5052,L--5052 |
| Citation | 11 N.J.Super. 272,78 A.2d 320 |
| Parties | STRECKER et al. v. DEVINE |
| Court | New Jersey Superior Court |
George F. Lahey, Jr., Newark (Lahey & Gockeler, Newark, attorneys), argued for the motion.
Sidney M. Schreiber, Newark (McKeown, Schreiber & Lancaster, Newark, attorneys), argued for the countermotion.
The plaintiffs in this suit seek damages from the defendant who is charged with the negligent operation of an automobile owned by Zurich Insurance Company. The Zurich is not a defendant.
In preparation for trial, the plaintiffs took the depositions of Raymond J. Walker and Millard Welch, both employees of the Zurich. The examination of deponent, Walker, had not progressed far when he was asked what the conditions were under which Devine, the defendant, was furnished with the automobile. The witness refused to answer on the advice of his personal counsel; his counsel stating the reason for so advising the witness was that the matter sought to be elicited by the question was not relevant to the subject matter of the pending action. Somewhat later the witness was asked whether Devine, the defendant, while in the employ of Zurich and prior to 1950, the date of the accident out of which this suit arose, had any automobile accidents or motor vehicle violations. The questions were objected to (1) as immaterial and (2) because the questions would not be permitted at the trial. The witness was instructed not to answer. Subsequent to the accident out of which the present suit arose, the defendant was interviewed and his statements taken by stenographers. The witness was asked the names of the stenographers but refused to answer on the advice of counsel for the reason that the statement 'was an investigation in anticipation of litigation and in preparation for trial.' Although under subpoena to bring with him 'copies of any and all statements or transcripts of records obtained from James Devine, with respect to the automobile accident in which James Devine was involved on January 27, 1950' the witness, acting upon the advice of his attorney, did not do so.
Rule 3:30--4 providing for termination or limitation of an examination, may be invoked by any party or by a witness under examination but only '* * * upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party * * *.' The defendant, Devine, is not the moving party and there is no showing that he or either of the witnesses, Walker or Welch, would be annoyed, embarrassed or oppressed in answering the questions put to them nor is there anything before the court to suggest that the examination was being conducted in bad faith. Under the circumstances, the motion to terminate or limit the examination is denied.
As to the cross-motion to compel the witnesses to answer or be held in contempt of court, it becomes necessary to examine Rule 3:26--2, dealing with the scope of examination. With the...
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