Opinion
September 18, 1952.
LAYTON, J., sitting.
H. Albert Young for Plaintiff.
John S. Walker for Defendant.
Objections by plaintiff to Defendant's Interrogatories.
Superior Court for New Castle County, No. 355, Civil Action, 1951.
Plaintiff instituted action against defendant for injuries as the result of an accident while riding as a guest passenger in defendant's automobile. In order to avoid the consequences of the "guest" statute, § 5713, Revised Code of Del. 1935, plaintiff alleged various acts of negligence which, he avers, were in wilful and wanton disregard of the rights of others. The specifications of negligence were these:
(a) He drove at an excessive rate of speed, to wit, at the rate of 70 to 85 miles per hour.
(b) He drove into a curve in the road at an excessive rate of speed, to wit, at the rate of 70 to 85 miles per hour.
(c) With a reckless indifference to the consequences, he consciously and intentionally did not keep his automobile under proper control.
(d) With a reckless indifference to the consequences, he consciously and intentionally did not keep a proper lookout.
Defendant filed a motion to dismiss this complaint which was denied by Judge Terry on August 1, 1952. Defendant now has served the following interrogatories upon plaintiff:
1. State the facts which are the basis of the allegation that defendant was driving at a speed of 70 to 85 miles per hour into a curve at or about the time of the wrong complained of. Give the names and addresses of the witnesses by whom such facts will be proven.
2. State with particularity the facts upon which you base your contention.
A. That defendant consciously and intentionally did not keep a proper lookout.
B. That defendant acted with reckless indifference to the consequences when he did not keep a proper lookout.
C. That defendant consciously and intentionally lost control of his car.
D. That defendant acted with reckless indifference to the consequences when he lost control of his car.
3. State with particularity all of the facts, and the names of all of the witnesses by whom such facts will be proven, upon which you base your allegation that the alleged injuries sustained by the plaintiff were caused by the wanton and wilful disregard by defendant of the rights of the plaintiff.
Defendant does not press his request that plaintiff divulge the names of all witnesses by whom he expects to prove the facts of his case.
Plaintiff objects to the form of these interrogatories because (1) they call for a complete statement in essay form of plaintiff's whole case, including the testimony of his witnesses; (2) because they do not consist of a series of single questions which some authorities indicate to be the preferable practice and (3) because if required to answer in this fashion, defendant may use the answers as a basis for a motion for summary judgment.
I am not impressed by plaintiff's objections. Where, as under the practice of this jurisdiction, a complaint affords little more than general notice of the claim asserted, defendant, under our discovery rules, is naturally entitled to a full disclosure of all material facts upon which the claim is founded. Pfeifer v. Johnson Motor Lines, 8 Terry 191, 89 A.2d 154, 155. And I cannot conceive of a better form of propounding the interrogatories than here devised. Concededly, there are cases which have rejected interrogatories filed in the form here filed. Ritepoint Co. v. Secretary Pen Co., Inc., D.C.N.J. 1950, 94 F. Supp. 457; Aktiebolaget Vargos v. Clark, D.C. 1949, 8 F.R.D. 635, 636. But there are numerous decisions to the contrary. Parron and Holtzoff Federal Practice and Procedure, Vol. 2, § 768, p. 437.
Plaintiff is not in reality being required to give a complete history of his case including a summary of the testimony of all his witnesses. Actually, a short answer of a few sentences would undoubtedly suffice fairly to inform defendant of the facts upon which plaintiff bases his ultimate conclusion that defendant was guilty of wanton and wilful conduct in disregard of the rights of others.
Plaintiff's argument that the facts here sought should be elicited by a series of single questions is not acceptable and, in my opinion, his further contention that his answers to these interrogatories may be used as the basis for a motion for summary judgment, rather than being persuasive, is without merit for it may result that this entire litigation can be disposed of at an early stage if it appears that plaintiff is unable to take his case without the "guest" statute.
My examination of the interrogatories here objected to indicates that plaintiff should not be required to answer interrogatory 1 because it seeks to elicit facts in support of a clear allegation of fact, namely that defendant was driving at a speed of between 70 to 85 miles per hour into a curve. He will be required to answer interrogatories 2(a), (b), (c) and (d), but not interrogatory 3 because the latter is repetitious in nature.