United States v. Continental Casualty Company

• Decision Date: 08 May 1962
• Docket Number: No. 8504.,8504.
• Citation: 303 F.2d 91
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: UNITED STATES of America for the Use of WESTON & BROOKER COMPANY, a Corporation, Appellee, v. CONTINENTAL CASUALTY COMPANY, Appellant.

303 F.2d 91 (1962)

UNITED STATES of America for the Use of WESTON & BROOKER COMPANY, a Corporation, Appellee, v. CONTINENTAL CASUALTY COMPANY, Appellant.

No. 8504.

United States Court of Appeals Fourth Circuit.

Argued March 19, 1962.

Decided May 8, 1962.

Joseph R. Young, Charleston, S. C. (Hagood, Rivers & Young, Charleston, S. C., on the brief), for appellant.

George L. Dial, Jr., Columbia, S. C. (R. B. Herbert, Jr., and Herbert & Dial, Columbia, S. C., on the brief), for appellee.

Before BOREMAN, BRYAN, and BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

This is an appeal from the District Court's Order, striking the defendant's Answer and awarding judgment to the plaintiff in accordance with the prayer of the Complainant. Plaintiff brings suit under 40 U.S.C.A. § 270b upon a payment bond given by the defendant, Continental Casualty Company, as surety and its principal in connection with construction work done on the Polaris Missile Assembly at Liberty Hall, South Carolina.

The plaintiff alleged that it furnished materials to a subcontractor at the joint instance and request of the subcontractor and of the prime contractor, who was, of course, the principal on defendant's bond. Itemized invoices were attached showing that between November 28, 1959, and March 11, 1960, the plaintiff delivered to and billed the subcontractor for materials for a total of $1,631.10; that between July 20, 1960, and August 2, 1960, materials were delivered to the project and billed to the prime contractor at its specific request in the amount of $1,404.36.

On February 2, 1961, this suit was begun and on February 25th a timely answer was filed which denied all except the jurisdictional allegations of the Complaint. Subsequent sworn answers to interrogatories admitted the indebtedness of the prime contractor in the amount of $1,404.36 as alleged in the Complaint. On June 15th the plaintiff mailed additional interrogatories to the defendant, receipt of which was acknowledged on June 23rd. These interrogatories, eight in number, were not answered until thirty-nine days later on August 1st, nor was any extension of time requested by the defendant. In the interim, on July 24th the plaintiff made the motion which resulted in the judgment, entered on August 29th, from which this appeal is taken. The court below supported its exercise of discretion on the grounds that defendant's Answer, denying facts which were clearly within its knowledge and later admitted in its sworn answers to interrogatories and its failure to answer the second set of interrogatories on time, together with the fact that there were pending in court twenty-seven different actions on the same bond, convinced the court that defendant was engaged in dilatory tactics and that it had no valid defense to plaintiff's claim.

Defendant's counsel here contends that the court below abused its discretion. On this record, we cannot agree. The Rules were designed to secure "the just, speedy and inexpensive determination of every action" Fed.R. Civ.P. rule 1, 28 U.S.C.A. A defendant may not ignore the plain mandate of the Rules. The defendant's assumption that he could with impunity ignore the requirements of Rule 33 because the next term of court at which the case might presumably be tried was several months away shows a basic misunderstanding of the purpose and spirit of the Rules. A party to an action has the right to have the benefits of discovery procedure promptly, not only in order that he may have ample time to prepare his case before scheduled trial, but also in order to bring to light facts which may entitle him to summary judgment or induce settlement prior to trial.

The sanctions authorized by Rule 37(d) should not be applied in the absence of wilful failure to comply with the provisions regarding discovery; however "wilful failure" does not necessarily include a wrongful intent to disobey the rule. A conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance, is sufficient to invoke the penalty....