Edward W. Cooch, Jr. (of Morford, Bennethum, Marvel & Cooch), Wilmington, for plaintiff.
William Prickett and Jackson W. Raysor, Wilmington, for defendant, Johnson Motor Lines, Inc.
The plaintiff alleges in his complaint that he was injured as the result of a motor vehicle collision caused by the negligence of the defendants. The plaintiff was the operator of one of the vehicles. It is alleged that the other vehicle was owned by the defendant Johnson Motor Lines, Inc. and was being operated [47 Del. 194] by its employee, Everette Berry Harrelson, the other defendant. It appears from the complaint that the accident was a right-angle intersectional collision and that the motor vehicle driven by the plaintiff was in motion at the time of the impact. After alleging several acts of negligence on the part of the defendants, the plaintiff alleged in his complaint: 'Defendants had the last clear chance of avoiding the accident.' By its answer, Johnson Motor Lines, Inc., denies negligence and asserts contributory negligence on the part of the plaintiff.
Pursuant to Superior Court Rule 33,  the defendant Johnson Motor Lines, Inc. served the following interrogatorty upon the plaintiff:
'Specify the negligence of which the plaintiff was guilty that is the basis for the allegation that the defendant had the last clear chance to avoid the collision, * * *.'
The plaintiff objects to the interrogatory on the ground that it calls for an opinion or conclusion of law.
The plaintiff's objection is technical. It conflicts with the broad and liberal treatment which should be accorded to Rule 33. See Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 392, 91 L.Ed. 451.
Actually, the defendant's interrogatory is calling for the plaintiff's contentions regarding the application of the last clear chance doctrine, including a particularization of the plaintiff's skeleton allegation of a conclusion of law as to that doctrine. Disregarding the technical connotation often placed upon the word 'negligence' as a conclusion of law, the defendant's interrogatory is actually making this inquiry: What are the facts upon which you base your contention that the last clear chance doctrine may be applied in your favor? While the form of the interrogatory may be objectionable upon technical grounds, the substance of the interrogatory is clear. I shall look to the substance of the interrogatory and disregard its form.
[47 Del. 195] I subscribe to the view that an interrogatory should not be considered improper for the sole reason that it requires the adverse party to state his contentions regarding the issues made by the pleadings. See 4 Moore's Fed.Pract. (2d Ed.) p. 2311;
Hickman v. Taylor, supra,
329 U.S. 495
67 S.Ct. 389
91 L.Ed. ...