Julia L. WILLIAMS, Plaintiff,
Anne Dorsey HALL, Defendant.
[54 Del. 351] David B. Coxe, Jr., and Emmett J. Conte, Jr., Wilmington, for plaintiff.
Morton E. Evans, Wilmington, for defendant.
Plaintiff sued defendant to recover damages for personal injuries allegedly resulting from a motor vehicle collision between their vehicles in a street intersection, allegedly caused by defendant's negligence. The defendant was served personally and filed her answer. After defendant filed her answer, her attorney propounded thirty-six Interrogatories to plaintiff.
Plaintiff did not file objections to any of these Interrogatories, as called for and within the time prescribed by the Rules.
Plaintiff answered Interrogatories numbered 1 through 27 inclusive. Plaintiff's answers to Interrogatories numbered 28 through 36 inclusive consisted solely of the statement in each instance:
'This interrogatory will not be answered; see Rules of Civil Procedure, Superior Court Rule 26(b).'
Defendant did not, before oral argument, move under Rule 37(a), Del.C.Ann., 'for an order compelling an answer' to the nine Interrogatories; instead of following such a [54 Del. 352] course defendant served a motion on plaintiff's attorney denominated----
'Motion for Judgment by Default Against Plaintiff Under Rule 37(d)'
When this motion was presented, the Court directed the attorneys for the parties to file briefs in support of their respective positions.
Defendant's attorney contends (1) that plaintiff's failure to file objections to Interrogatories Nos. 28 through 36, as required by Rule 33, constitutes a waiver of plaintiff's right to object to such Interrogatories and (2) having waived the right to object, this, in a sense, constituted the 'refusal' to answer, which is the ground for the entry of a default judgment under Rule 37(d). Plaintiff's attorney, on the other hand, contends that defendant's remedy initially is under Rule 37(a) and not under Rule 37(d), and that defendant should have moved under Rule 37(a) for an order to compel answers before moving under Rule 37(d) for a default judgment.
It is clear that plaintiff's method of noting her objections to defendant's Interrogatories numbered 28 through 36 did not comply with the requirements of the Rules. Baxter v. Vick, 25 F.R.D. 229 (D.Ct., S.D.Penna., 1960); Cardox Corp. v. Olin Mathieson Chemical Corp., post; Bohlin v. Brass Rail, Inc., post and Cleminshaw v. Bench Aircraft Corp., post. These cases hold that objections to interrogatories cannot be asserted in answers to interrogatories.
The question is this--what consequences follow a party's asserting objections to interrogatories by way of answers rather than in separate objections, as the case here?
The question for decision has not been passed on by our Court; it has, however, been considered in at least two cases, [54 Del. 353] United States for Benefit of General Electric Supply Corporation v. W. E. O'Neil Const. Co., 1 F.R.D. 529 (D.C.Mass.1941) and in Cardox Corp. v. Olin Mathieson Chemical Corp., 23 F.R.D. 27 (D.Ct., S.D.Ill., 1958). It was also referred to in other cases which will be noted later.
The Massachusetts Court ruled in the General Electric case, 1 F.R.D. at page 530, that 'where no answers have been filed' to interrogatories, but objections were filed on the ground that the interrogatories were filed too late, and the objections were overruled, then----
'* * * the defendant [the objecting party] is granted the usual period of fifteen days in which to serve its answers to the interrogatories and if the defendant fails to do so, the intervenor may then avail itself of Rule 37(d) enabling the Court on motion to enter a judgment by default against the defendant.'
In the Cardox case, defendant propounded 12 interrogatories to plaintiff, who filed answers to some of these interrogatories, but declined to answer other interrogatories,--noting its objections, 23 F.R.D. at page 28, on the grounds 'that the subject matter thereof is privileged and irrelevant to the subject matter of the cause'.
Defendant moved, 23 F.R.D. at page 29, under Rule 37(d) 'to strike plaintiff's complaint and for the entry of judgment against plaintiff * * *'. In the alternative defendant invoked 'the provisions of Rule 37(a)' and moved 'the court for an order compelling plaintiff to answer the several interrogatories fully and requiring plaintiff to reimburse it for expenses and reasonable
attorneys' fees incurred in the prosecution of' defendant's 'motion'.
The Illinois District Court ruled in deciding defendant's motions (23 F.R.D. at page 29):
[54 Del. 354] 'Insofar as its motion is predicated upon the provisions of paragraph (d) of Rule 37, defendant has misconstrued its remedy. * * *:
* * *
* * *
'Thus that paragraph is expressly restricted to a 'wilful' failure to answer interrogatories, and the applicability of its remedies must, I think, be limited to situations in which there is a total refusal to respond. The Court of Appeals for the Sixth Circuit has defined 'wilful failure', correctly, I think, as 'any conscious and intentional failure' to comply with Rule 33. Brookdale Mill v. Rowley, 218 F.2d 728, 729; See, Milewski v. Schneider Transportation Company, 6 Cir., 238 F.2d 397.
'Rule 37(d) should not be applied to the situation in this cause in which answers were served, even though certain of the said answers may be insufficient to satisfy the provisions of Rule 33 for the reason that they do not constitute full answers which that Rule requires, or for the further reason that the only answer served to certain of the interrogatories may only be an improperly raised objection thereto. Such noncompliance does not evidence the degree of conscious and intentional failure which would justify the drastic remedies of Rule 37(d).' (Emphasis supplied.)
Continuing the Court, 23 F.R.D. at page 29, stated:
'There is merit, * * *, in defendant's alternative claim for relief under paragraph (e) of the Rule. The contentions in defendant's favor are in two categories: First, it is said that plaintiff has not fully answered Interrogatories numbered 1, 3b, 3c, 4 and 12; and, second, it is said that plaintiff failed entirely to answer Interrogatory 9c.
'Here, as with all questions of interpretation of the discovery rules of the Federal Rules of Civil Procedure, the keystone to decisions is the discretion of the trial judge, tempered [54 Del. 355] by the axiom that those rules should receive * * * the maximum degree of disclosure which can be compelled without doing injustice. "Unless, under the circumstances of any particular case, the Court is satisfied that the administration of justice will be in some way impeded," discovery under Rule 33 should be granted when asked. Hickman v. Taylor, 3 Cir., 153 F.2d 212, 216, affirmed 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451.' (Emphasis supplied.)
Dulin v. West (Dist.Ct., W.D.Mo., 1946), 10 F.R.S. at page 702, p37d. 33, case 1, is cited by defendant as authority for the granting of her motion for a judgment by default for plaintiff's failure to answer interrogatories. True the case so holds; but defendant here has not seen fit to consider that in the cited case an order had been entered prior to the filing of the motion for a default judgment, overruling a prior motion that had been filed to strike the interrogatories and giving the movant 15 days to answer the challenged interrogatories. The interrogatories were not answered, so about a month ...