In passing upon the trial judge’s grant of plaintiffs motion for summary judgment, we must consider the question whether the defendant was bound by one of his answers to plaintiffs interrogatories.
Suit was brought against the individual defendant and the corporate defendant of which the individual defendant was president. The grant of summary judgment allowed recovery against both. The individual defendant contends that only the corporate defendant was liable.
One of plaintiffs interrogatories queried: "what amount do you contend is due and owing to the plaintiff by you?” The individual defendant answered: "defendant contends that the amount of $7,336.04 is due and owing by himself.” $7,336.04 was the total amount in controversy.
Subsequently and over one month prior to the summary judgment hearing, the defendant filed, under oath, an amendment to the answer to interrogatory No. 17. It recited: "Defendant shows that the debt contended is neither due nor owing by himself individually as all dealings with the plaintiff were had by the defendant [corporation]. The [individual] defendant. . . further amends any other answer of whatever type and wherever found in whatever pleadings which might tend to indicate he was personally liable for the debt sued. To the contrary, the [individual] defendant. . . shows that he is not personally indebted to the plaintiff for any sum *470 whatsoever since all dealings of the plaintiff were with the defendant [corporation].”
Insofar as the record shows, the trial judge did not expressly pass upon whether the amendment was allowed or not. Ordinarily amendments to interrogatories are permitted, but only with leave of court. 4A Moore’s Federal Practice 33-134, Interrogatories to Parties, § 33.25 (2). Failure to obtain leave to amend would mean that the original answer would remain unchanged. Nevertheless, this does not mean that the styled "amendment” could not be considered on motion for summary judgment. It was sworn to and should have the same worth as other proof offered, such as affidavits.
In a recent decision, this court had before it a question of whether a party on the trial could testify, over objection, contrary to an answer to an interrogatory. We held the previous answer would not estop introduction of inconsistent testimony.
Benn v. McBride,
We have no valid basis for not applying this eminently sound position to the circumstances here. The answer to the interrogatory shows one position; the "amendment” shows a different posture. Both were properly before the trial judge. Thus, there is a conflict which should be resolved by a jury and not on motion for summary judgment.
Burnette Ford v. Hayes,
Judgment reversed.