Vincent v. Van Blooys
| Decision Date | 16 May 1933 |
| Docket Number | Motion No. 189. |
| Citation | 263 Mich. 312,248 N.W. 633 |
| Parties | VINCENT v. VAN BLOOYS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Kent County; Leonard D. Verdier, Judge.
Action by Theoda S. Vincent, administratrix of the estate of Philander Carperter, deceased, by authority and order of the probate court, against Anna Van Blooys, in which defendant instituted proceeding for discovery. From an order setting aside the proceeding for discovery, defendant appeals.
Order set aside.
Argued before the Entire Bench.Steketee & Steketee and Dunham & Allaben, all of Grand Rapids, for appellant.
G. Douglas Clapperton and Willis B. Perkins, Jr., all of Grand Rapids, for appellee.
This is appeal (mandamus) to review an order setting aside proceedings for discovery instituted by defendant under court rule No. 41 to enable her to plead to the declaration and prepare for trial.
The declaration alleges in substance that defendant owned an apartment building in Grand Rapids; that decedent was her tenant; that the premises had outdoor toilets, reached by a path from the apartment house; that water came down from a hill back of the lot and made the path icy in cold weather; that defendant assumed the duty to keep the path sanded, free from ice, and safe; that, while decedent was returning to the apartment building from the toilet on November 23, 1929, he slipped on the ice, which defendant had neglected to sand or keep from getting slippery, injured himself, and died in a few hours.
The action was commenced three years latter, one day before the suit would have been barred by the statute of limitation. Defendant gave notice to take plaintiff's deposition to be cross-examined on the specific time, exact place, manner of happening, cause and reason, and all other facts constituting the res gestae, of the alleged accident and the familiarity of decedent with the place.
In answer to motion to set aside the discovery proceeding, defendant deposed that she had had no inkling of a claim that deceased had been injured through her negligence; that, by certain public improvements, the hill had been removed and the physical conditions of the premises so changed that she did not remember their appearance three years before; that she had no personal knowledge of the facts and claims made in the declaration; that she had made inquiry, but was unable to get information, and she cannot determine how to plead nor to proceed to trial without an examination of plaintiff. Plaintiff filed counter affidavit of decedent's widow that she had delayed action because defendant had threatened her with physical violence and death if she brought suit.
Rule No. 41 was adopted from the New York practice, and plaintiff contends the construction of courts of that state were adopted with it, particularly the ruling that defendant may have an examination to prove his own case only; i. e., his affirmative defenses. As the Court of Appeals of New York has not outlined the practice, but has held it discretionary with the Supreme Courts, Middleton v. Boardman, 240 N. Y. 553, 148 N. E. 701, and the Appellate Divisions of the Supreme Courts are...
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Apportionment of Mich. Legislature, In re
...good faith and we cannot anticipate an abuse nor hold that possibility of abuse warrants inhibition of the right.' In Vincent v. Van Blooys, 263 Mich. 312, 248 N.W. 633, this Court commented on the fact that, 'Rule No. 41 was adopted from the New York practice, * * * the case concerns conce......
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Hallett v. Mich. Consol. Gas Co.
...for the purpose of enabling plaintiff to prepare his declaration must be left to the discretion of the trial judge. ‘In Vincent v. Van Blooys, 263 Mich. 312, 248 N.W. 633, this court pointed out the purposes and advantages of the discovery procedure, indicating that, if evils should develop......
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Maerz v. U.S. Steel Corp.
...are to be liberally construed. Hallett v. Michigan Consolidated Gas Co., 298 Mich. 582, 592, 299 N.W. 723 (1941), Vincent v. Van Blooys, 263 Mich. 312, 314, 248 N.W. 633 (1933), Dowood Co. v. Michigan Tool Co., 14 Mich.App. 158, 161, 165 N.W.2d 450 (1968). This is reflected in decisions whi......
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Banaszkiewicz v. Baun
...the true facts and circumstances of a controversy, rather than aid in their concealment.' * * * '* * * As we said in Vincent v. Van Blooys, 263 Mich. 312, 314, 248 N.W. 633: "Aside from its advantage to a party in discovering the opponent's claim, the rule has a public purpose which should ......