Looney v. Saltonstall, 98 N.E. 698

Looney v. Saltonstall

98 N.E. 698

Mass.

1912

Check Treatment

Rugg, C. J.

This сase involves a construction of R. L. c. 173, § 57, as amended by St. 1909, c. 225, which substituted a new section, and which relates to interrogatories in civil actions.*

*72This amendment, although adverted to in Grebenstein v. Stone & Webster Engineering Co. 205 Mass. 431, 439, never has been interpreted. A comparison of the old with the new section reveals certain obvious and important changes. In the earlier statute parties were not quite on the same basis as to the time of filing interrogatories. The plaintiff could file them аfter the entry of the action, but the defendant could do so only after he had completed his pleadings. By the amendment, all partiеs stand on the same footing, and may file interrogatories after the entry of the action. The earlier statute confined the right of each party to inquiries aimed at the discovery of facts and documents material to the support of the contentions set up by his own pleadings. The amendment removes this definite restriction, and permits interrogatories as wide in scope as the issues presented for trial, subject, however, to the single limitation, “except as hereinafter provided.” These words manifestly refer'to R. L. c. 173, § 63, which provides in substance that no party shall be compelled by an answer to criminate himself or to disclose title to property not material in the trial, or “to disclose the names of the witnesses by whom, or the manner in which, he proposes to prove his own case.” These words have been in our practice act without significant change since the matter was first dealt with in St. 1851, c. 233, § 106. The same is true of § 57 prior to its amendment in 1909, it hаving first appeared in § 98 of St. 1851, c. 233.

These two sections as they appeared in the practice act of the next year, St. 1852, c. 312, §§61, 69, were construed by Mr. Justice Bigelow speaking for the court, in Wilson v. Webber, 2 Gray, 558, who said, “the plaintiff may interrogate upon any matter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍material to the support of his case, and the defendant *73upon those material to his defense. . . . Each party is to be confined to those matters which are material to sustain the case which he sets up by his pleadings; he is to be allowed to obtain, by interrogating his adversary, proofs of his оwn case, but not those which establish the case set up against him.” See to the same effect Wetherbee v. Winchester, 128 Mass. 293, and Davis v. Mills, 163 Mass. 481. The statute of 1909 has modified the law as thus dеclared. Each party is no longer confined to matters strictly in support of his own case. He may inquire as to anything which would be comрetent in evidence, subject to the narrowing effect of § 63. The limiting words of that section material to this case prohibit interrogatoriеs, the answers to which would disclose “the manner in which” the adverse party “proposes to prove his own case.” As to the meaning of these words, it was said in Wilson v. Webber: “This provision is entirely inconsistent with the theory that by § 61 [now R. L. c. 173, § 57] a right was given to a party to seek by interrogatories a disclosure of the case that was to be set up against him; because such a right could not be exercised to any effective purpose under such a restriction as is imposed by § 69 [now R. L. c. 173, § 63]. It is difficult to imagine a question, relative to material facts in support of a casе against a party, the answer to which would not necessarily involve a disclosure of the mode of its proofs.” In terms this case holds that the manner in which a case is to be proved (as these words are used in the statute) mean the substance as well as the form by which a cаse is to be supported. It relates not merely to the medium of proof, but includes also the facts to be proved. This language and the amplification of interpretation given to this section in Wilson v. Webber have been left unaffected by the amendment of St. 1909, c. 225. The exceptiоn contained in its last clause in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍effect imports into its terms the provisions of § 63 as it had been interpreted by decisions of this court. Wilson v. Webber, still corrеctly states the law in this respect in view of St. 1909, c. 225. It has been said that the re-enactment without change of a statute, which has receivеd previously a long continued executive construction, is a legislative adoption of such construction. United States v. Hermanos y Compañía, 209 U. S. 337, 339. Komada v. United States, 215 U. S. 392. The reason is all the stronger for the assumption that the interpretation given by *74the court of last resort to language employed in a statute is adopted and approved by the legislative department when that statute is re-enacted without substantial change. Welch v. Boston, 211 Mass. 178.

The result is that St. 1909, c. 225, has enlarged thе time within which interrogatories may be propounded by any party to that intervening between the entry of the action and the opening of the trial on the merits, and that the scope of the questions which may ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍be asked is as broad as the field which would be permitted if the person interrogated was called as a witness to testify orally in the actual trial, except as it is limited by the language of R. L. c. 173, § 63, according tо its definition set forth in Wilson v. Webber, 2 Gray, 558, and other decisions following it. Davis v. Mills, 163 Mass. 481. Spinney v. Boston Elevated Railway, 188 Mass. 30, 37. Robbins v. Brockton Street Railway, 180 Mass. 51, 55. Gunn v. New York, New Haven & Hartford Railroad, 171 Mass. 417, 421. Carroll v. Boston Elevated Railway, 200 Mass. 527, 532.

The practical effect of the enlargement of the scope of inquiry wrought by the statute of 1909 is not easy to definе. But for example it probably includes interrogation as to specific facts in contradiction of a definite claim set up by the adverse party, and as to which he has the burden of proof.

It is not feasible to do more than lay down the general rule and leave еach case to be tested by it as occasion requires.

We understand that the defendants have not argued that their interrogatories should have been answered unless St. 1909, c. 225, has changed the effect of R. L. c. 173, § 63, as interpreted by Wilson v. Webber. But however that may be, a careful examination of the questions in detail does not show the commission of any error in the Superior Court. Either as disclosing the substance of the plаintiff’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍case, the means of its proof, as being immaterial, calling for the expression of an opinion, or the failure to answer being nоt harmful, the order was right in not requiring further answer.

Exceptions overruled.

Notes

R. L. c. 173, § 57: “ The plaintiff, after the entry of the action, and the defendant, after answer, or in a real or mixed action, after plea, and before the opening of the trial on the merits, may file in the clerk’s office or in the *72office of a justice who has no clerk, or with a trial justice, interrogatories to the adverse party for the discovery of facts and documents mаterial to the support or defence of the action.”

St. 1909, c. 225: “Chapter one hundred and seventy-three of the Revised Laws is hereby amended by striking out section fifty-seven and inserting in place thereof the following: —Section 57. Either party after entry of the action and before the opening of the trial on the merits may file in the clerk’s office or in the office of a justice who has no clerk or with a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trial justice, interrogatories to the adverse party for the discovery of any facts and documents admissible in evidence at the trial of the action, except as hereinafter provided.”