Opinion
February 9, 1950.
LAYTON, J., sitting.
Clement C. Wood for Plaintiffs Sherr.
William Prickett for Defendant Kutchinsky.
Albert L. Simon for Defendant East.
Superior Court for New Castle County, Civil Actions Nos. 385 and 386, 1949.
Plaintiffs were passengers in Kutchinsky's automobile from Florida to New York. While motoring through Delaware on the way North Kutchinsky became involved in a collision with a truck driven by East. Plaintiffs have sued both Kutchinsky and East. Kutchinsky, while denying any liability, admitted in his answer inter alia that Plaintiffs were paying passengers. East, among other defenses, asserts that Plaintiffs were in a joint venture with Kutchinsky and Kutchinsky's negligence, if any, is imputable to them. Plaintiffs have served requests for admissions upon Kutchinsky alone which would seek to elicit the truth of the following facts: That Kutchinsky advertised in a Miami newspaper that he was returning by car to New York shortly thereafter and would take two passengers to share his expenses; that Plaintiffs made contact with him as a result of this advertisement and agreed and did pay Kutchinsky certain money for their transportation in his car.
Kutchinsky's attorney objects to answering the above-stated requests upon two grounds, viz: That as between Plaintiffs and himself he should not be compelled to answer because he has already admitted by his answer that Plaintiffs were paying guests and that such answers would not be admissible as against East because the admissions of one joint tort Defendant under Rule 36 are not binding upon the other. East's attorney also opposed the request, but only upon the latter ground.
I am of the opinion that Kutchinsky should not be compelled to admit matters of fact already admitted by his answer and concerning which there is no issue. O'Rourke v. RKO Radio Pictures, Inc., (D.C.) 27 F. Supp. 996.
Plaintiffs, however, argue that even though this may be correct as between themselves and Kutchinsky, yet, the facts sought to be elicited by the request would aid them in combatting East's defense of imputed negligence between parties to a joint venture. The short answer to this is that Rule 36, identical with the Federal Rules of Civil Procedure, rule 36, 28 U.S.C.A., was not designed to elicit the genuineness of documents and truth of facts from one of two joint tort Defendants for use against the other. Matter such as this, obtained without notice to the other Defendant, who has no opportunity to cross-examine concerning it, is plainly not admissible against a joint tort-Defendant at the trial. The facts sought to be obtained under Rule 36 are readily accessible by way of our other Discovery Rules.
Kutchinsky's objection sustained.