*1 18,859. No.
Mary et al. v. District Court Lucas, V. et County,
Pueblo al. (345 1064) [2d] P. March 1959. Decided original opinion 2, 1959, rehearing, on November modified and as modified adhered to. *2 complainants. for Messrs. Evensen & Petersen, Evans, respondents. Messrs. Hays, & Phelps, Fonda Mr. M. Janu- M. Mr. Wormwood, Samuel Kenneth A. Mr. Mr. Walter ary, Mr. William Steele, Ris, K. Burnett, Amici curiae. Myron H.
En Banc. Doyle delivered the of the Court. Mr. Justice proceeding original under 106 is an Rule This directing plaintiff the District an order Court seeks require County the defendants to furnish to of Pueblo liability pertaining insurance. The matter information arose during defendants’ taking depositions. the' This was brought attention of the District Court motion that court refused grant requested relief.
The complaint contains the That there following facts: is now pending the Pueblo District Court a certain suit in which the plaintiffs plaintiffs here are George M. and defendants; Grace Elaine that Moore are in the course of taking defendants, depositions questions were propounded relative to the existence of insurance and the that liability thereof; limits policy defendants refused to answer questions; there- upon motion was filed to compel disclosure of limits of the which the defend- policy ants had, and the trial admittedly court denied this mo- tion. It is alleged the liability policy subject the Safety Colorado; Law of Responsibility *3 statute was enacted for the protection of the and public; the following collision, provisions the of insur- the ance became policy active under ’53, (a), C.R.S. 13-7-23 and the have a plaintiffs to discover the informa- tion as on the extent of bearing trial preparation and so as to obtain full benefit to the existence of the insurance It is coverage. also the alleged matter is relevant within the terms of Rule 26 (b), Rules of Civil Pro- cedure. on the
Hearing issues raised by the motion was had in the district court and it held:
“That the discovery was question to sought prior the trial and judgment, plaintiffs desired this in- formation for the of it purpose using in an attempted compromise of the action and not for the purpose a satisfying judgment obtained.” already the Following filing complaint herein, we issued an order directed to the trial court to show cause- why the should relief not requested granted. Within the n time, defendants filed their motion to dismiss the com- This motion plaint. the questioned validity propriety
513 remedy. of motion the as The averments mandamus a question exercise called is one which are that the by that reason and for Court, District discretion subject extra- means of this to action is not review its remedy. ordinary purports
Although arise under Rule the case apply origi that this rule does 106, it is our view proceedings. Colorado, Article The Constitution nal referring that “It to this Court 3, VI, Section declares quo power mandamus, war issue writs of shall have original injunction and other reme certiorari, ranto authority to hear and with determine dial writs ”** * same. (2d) 1, P. Court, District 138 Colo. 329
In Leonhart v. we said: 781, authority entertain remedial writs is con
“Our
dependent upon,
Constitution,
and ‘is not
ferred
procedure
governed by
civil
statute’ or rules of
Lindsley
subject. People
Court,
rel.
v. District
ex
on
writs,
‘Those
however,
that that *4 dismiss should be denied. the motion to our procedure by which has been the followed the view, permit procedure only plaintiffs the which would is them ruling. judge’s they validity trial Had test the to permitted judgment question to await final this it would concededly moot, because become the testi then have mony question not have been at would admissible trial judgment
trial the final of with result ruling. by court have been affected instant would not is and thus not reviewable Since order interlocutory error, remedy writ of there in truth no by adequate is available to the plaintiffs. is-
Defendants have that since the substantive argued there sue is and since impression one of first in Colorado is a the trial jurisdictions, division of in other viewpoint court selecting viewpoint exercised discretion in one and in it is This, argued, other. cannot rejecting argument reviewed mandamus. This take by does not into account that the of the trial court in ruling pre-trial matters would as a become final and the general rule aggrieved would be to obtain relief party helpless by writ of error. The situation is to that which analogous was presented to this Court in Town v. City Glendale Denver, County 188, 1053, 137 Colo. P. (2d) wherein it held was in an eminent domain proceeding that writ of error would not issue to inter- review an locutory granting order immediate possession. temporary Smith, Court cited v. 119 Colo. 201 P. 126, Swift (2d) 609, and said:
“The proper
for relief from
proceeding
an interlocu-
order
tory
as stated in
Smith,
cer-
supra,
by
Swift
tiorari. Later
Patashnik
v. Public Service Company
Colorado,
515 Colo, page 101, say, at 126 on to court then went “The (2d) page P. at 138: 247 “ interlocutory order an error to review ‘That a writ of an That lie conceded. is the court will not of district original under proceeding certiorari nature of in the endangered, to an directed Colo., R.C.P. when Rule right, is fundamentally and substantial substantive remedy proper recognized set- is maintainable ” (2d) 609.’ 126, 201 P. 119 Colo. Smith, tled. Swift of a such as that the denial holdWe proceedings), (in pre-trial is action which here asserted means be otherwise, determined not reviewable original proceeding court. in in this an certiorari complaint be entertained that the should We conclude question determined on be and that this should merits. Discovery. Scope in- decide whether 2. In order to
quiring insur- extent of into existence and pre-trial depositions, proper we must consider ance is in pertinent provides (b), Colo., Rule 26 R.C.P. which part: “ * ** any regarding deponent may examined subject privileged, is relevant to matter, not which pending action, whether relates matter involved in the examining party to the claim of the or defense * * any party, *. It other is claim or defense testimony objection grounds that the will be inad- sought testimony appears missible at trial if the rea- discovery sonably calculated to lead to the of admissible evidence.” specific question for determination is whether subject inquiry “relevant matter
mentioned is pending meaning action” within involved relevancy or whether as here used is restricted rule, testimony at admissible the trial or to evidence reasonably discovery calculated lead which is admissible evidence. bearing question, As on- this our attention has been Law,
directed to Responsibility the Automobile Safety ’53, et C.R.S. to Sections 13-7-1, seq., specifically 13-7-19, general, purpose provi- 23. *6 sions cited is coverage to foster and insurance promote or, in the accident, event of bond financial a to insure Its responsibility. compen- ultimate is to object provide sation for innocent persons injured who might through faulty operation of motor vehicles. Toward ends, these it that provides inter alia the insurance (1) carrier’s shall liability become absolute whenever loss or damage covered occurs; that policy (2) attempted satisfaction 'of final insured not be a judgment by shall condition precedent obligation to make of carrier payment; that (3) fraud, misrepresentation or other act insured in obtaining the shall a policy not constitute defense available to the insuror a against judgment creditor; and limitations the cancellation of (4) See policy. 13-7-23 supra.
It is often said that the third person is a injured party in these beneficiary insurance contracts. Ewing Cf. v. Farm Co., Colo. Mutual 447, 133 Casualty Colo. 296 P. 1040. also (2d) Superior See Insurance v. Co. Superior Court, 37 Cal. (2d) 749, 833, 235 P. and (2d) State ex rel. Allen v. Second Judicial Court, 245 P. (2d) 1003 (Nev. 1952), holding policies issued pursuant to acts similar to that in here are question enforcible by injured parties. Fisher,
In v. 12 Ill. People 231, (2d) 145 (2d) 588, N.E. it said: was
“Thus, statutes, under our as in California, liability is not merely private matter the sole carrier and knowledge the insured, but is also for the benefit of persons injured by the negligent operation of insured’s motor vehicle.”
In the light our Safety Act Responsibility into account taking objects purposes, we are of that the inquiries concerning the existence of coverage are “relevant insurance and extent of pending-action.” subject involved in the matter impression question in state is of first The one jurisdic- decisions of other and we have looked to the substantially similar rules under acts or tions rendered and our Rules of Civil Procedure to the Federal Rules (which patterned Federal after the Procedure are Civil Rules). per- discovery is held that cases is some of these respect only ad- matters constitute
missible group Best, 76 S.D. In this Bean missible evidence. (2d) it was held wherein N.W. pro- compelling plaintiff an order was entitled to copy- inspection policy for duction an insurance ing. -Court held Dakota’s Rule 34 the Under South policy dis- evidence, was not admissible since the covery that in- noted not be allowed. Court would *7 (directly) which the action surance did not concern against pending, the in- action rather future was then contemplated. how- noted, It is to be sur or which was amended been Dakota rule had not ever, that the South which liberalized with the amendments in accordance predi- to the decision seems be the Rules and Federal upon cated this fact. 507, Misc. 154 Goheen, v. 9 N.J.
The case of Goheen discovery did 393, so on Atl. also denied interrogatories propounded ground not ma are that “the competent relevant to the issue and are not terial plaintiff.” decisions are con These two evidence for the (b) express trary Amended Rule 26 terms of our to the provides scope expressly that the of examination which testimony to which will admissible is not limited trial. August (b) 1951, conform 18, amended Rule was 26 Federal Rule is its the 1946 modification counterpart. the final sentence which that occasion On objection ground provides: the testi- “It is not testimony mony at the trial if inadmissible will be 518
sought appears reasonably to the dis- calculated lead covery evidence,” of admissible was added. purpose
As was it, we view of this amendment scope to limit the examination, but rather enlarge by eliminating objection it the testi- mony sought would not at trial. be admissible We not believe that it was do intended to limit the clause subject pending to the matter “relevant involved in the :|! * * only “testimony action,” so that it embraces discovery calculated to lead to admissible evi- pre- dence.” Our conclusion is therefore based (b). amendment Rule 26 subject our view, the term “relevant to the pending
matter involved in the action” includes in quiries as to the existence of insurance and the policy limits of such insurance. This is the construction adopted following People which has been in the cases: supra (Ill. 1957); (Ky.), Fisher, v. Maddox v. Grauman (2d) (2d) 939, 265 S.W. 41 A.L.R. 964; Brackett v. Wood Orgel McCurdy, 4; all Food 12 Products, F.R.D. v. (S.D. NY.); Superior
F.R.D. 585 Demaree v. Court, 10 (2d) (2d) (followed by Superior 99, Cal. 73 P. In Superior (2d) Court, surance Co. v. 749, 37 Cal. 235 P. (2d) 833). Layton Cregan Mallory In the case of & Co., 263 Mich. 248 N.W. it was held that exist coverage proper discovery ence of insurance was a in ownership quiry where was vehicle in issue. This predated discovery provisions. case the liberalized fully persuasive The most considered and decision among involving those as cited, does rule identical (except liberalizing 1951) with ours sentence of *8 safety responsibility and a is statute similar to that which People supra. in state, force in this is that of v. Fisher, quote opinion: We from that liability policy a assets,
“Unlike other insurance exists single purpose satisfying liability for that it covers. It has no other function and no other value. Litigation practical litigant is a business. The sues to money paper judgment recover that cannot be liability and is not interested in a presence or absence of
collected. The controlling frequently insurance is factor determining prepared the manner in is case trial. That covery than nominal re- there will be actual rather every aspect preparation for the conditions —- photog- investigators, doctors, trial of these cases raphers depositions. Ordinarily taking and even plaintiff many inquiry by has means sources of of which appraise judgment he can the likelihood that he seeks be an will enforceable. the case of insurance policy, customary however, all the channels cut off. are identity company Even if he knows the of the insurance standing, help know its financial it does not company responsible only him, for the is within the lim- policy it has issued. determining “In whether is insurance dis by pretrial interrogatories, coverable cognizance must take we also companies
of the role of insurance in such litigation against their insured, for as Justice Holmes ‘Judges noted, need not be more than naive other men.’ company virtually Inasmuch as the insurance sub (Maddox party Ky., stituted as a v. Grauman, 265 S.W. (2d) Jeppesen 939; dissent in Swanson, 243 Minn. (2d) 658), investigation
68 N.W. as far as the conduct of the concerned, defense is it would seem to indispensable, plaintiff’s attorney if not relevant, knowledge have of the existence of order to prepare apprised for the case he has to meet and be adversary. knowledge, his real Such furthermore, would purposeful also lead to more discussions of settlement, thereby dispatch and This effectuate the of court business.
aspect significant ju is most in terms of effective coping today’s congested dicial administration in with largely increasing dockets which are attributable to the personal injury litigation. volume of analysis,
“On the basis of this it is our discovery interrogatories respecting the existence and
520 may
amount
be deemed to
of defendant’s insurance
litigation,’ as
‘relat[ed] to the merits of the matter in
provided
101.19-4,
in Civil Practice Rules 101.19-11
arising
apprise
plaintiffs
rights
they
injured
out
since
of the
of
pub-
and which the
accident,
unknown,
otherwise
policy
protects, give
a realistic
lic
of
counsel
this State
pre-
appraisal
adversary
case
of his
and of the
he must
pare
basis for the
for, and afford
sounder
settlement
disputes.
is in
of
believe that such
construction!
We
of the framers of the
accordance with the intention
give
scope
practice
amended Rules to
a broader
to the
pre-
discovery
thereby
attorneys
of
better
enable
pare and
their cases.”
evaluate
Orgel McCurdy, supra,
District
v.
the U.S.
Court
for the
District of New York commented
Southern
presented
issue
follows:
sought by an
“The information
examination must be
subject
pending
relevant
matter of the
action.
Melady,
1940,
Stevenson v.
Under Federal
D.C.S.D.N.Y.
Rules of rule 26 28 necessary U.S.C.A., is not to establish the admissi- bility testimony; inquiry it is sufficient that of generally bearing be made as to matters on issue and relevant thereto. Mackerer v. New York Central R. Engl 1 Co., D.C.E.D.N.Y. F.R.D. 408. See also (2d) 2 Co., Cir., 1943, Aetna Ins. 139 F. 472: Life “ discovery practice ‘For the extensive of the new may merely rules, examination before trial be had purpose producing for the evidence to be used at the discovery trial, evidence, indeed, but also for for leads ” as to where evidence be located.’ supra, In Brackett v. Woodall Food Products, opinion of the U.S. District Court for the Eastern Dis- upholding plaintiff trict of Tennessee production liability policy under Rule pointed legislation out that modern trend operators requiring in the direction of motor vehicles to protection insurance for the third maintain tre- and that been necessitated persons has mendous increase of the number of such vehicles The Court said: irresponsibility problem.
“From is the it legislation tenor such purpose obvious that such insurance are rele- policies definitely vant to the subject growing matter of actions pending out of accidents covered such especially policies, view of the fact that would this legislation apparently the defendant to require authority disclose to the state the information plain- the insurance which concerning seek, tiffs and this public would be record. matter “ * * * The finds that it plain- Court is material to the tiffs, in the preparation trial, of their cases for that they given be an to if opportunity inspect and, desired, to or copy the the photograph insurance liability policy provisions policy plantiffs afford of which may rights would they otherwise not be able to avail themselves.” Also, in Maddox Grauman, v. view- supra, the same point obtained. the Court out Again pointed insurance liability is for the benefit of policy injured persons in that it for the satisfaction provides security of any judgment obtained. The Court then concluded:
“If the insurance question relevant to the subject matter after the plaintiff is it not relevant prevails, why while the action We believe it is. An pends? insurance contract longer secret, is no private, confidential ar- rangement between the insurance carrier and the indi- vidual but it is an agreement that embraces those whose person or injured act property may negligent of the insured. We conclude the answers to the pro- pounded are relevant questions subject matter of and within litigation spirit and meaning of CR 26.02. Brackett v. D.C., See Woodall Food Products, Inc., 12 F.D.R. 4; D.C., 8 F.R.D: Orgel McCurdy, 585; Supe- rior Insurance v. Superior Court in and for Company Los 37 Cal. 2d P. Angeles County, 2d 833.”
The thread which runs all through of these decisions is that the term “relevant” is not limited to the trial at
matter admissible in evidence which is but evidence, admissible which lead to will properly are relevant all things includes of those cases hold subject matter the action. These the fact stems from coverage of insurance relevancy respond must action and carrier defends the after a is obtained. damages judgment may a defendant although It is conceivable that also notify properly have insurance he fail liability seriously This would neglect his insurance carrier. Responsibility under plaintiff Safety prejudice ascer- plaintiff law. Thus is in the interest tain all of the facts pertaining been notice to the there has coverage, including whether carrier. must be a liberal inter- given
That the term “relevant” *11 Federal in his on is indicated Moore work pretation attached to Vol Practice, (Pocket 2). 26.14 Supplement that a deponent the rules contemplate He states he except all those to which shall answer questions of and that privilege objections on the objects ground be saved until the actual based are to admissibility on trial. included are considered above are
The cases which 2d This fol- a is in 41 ALR 968. reported in note which Grauman, supra. a Maddox v. report lows of statute rules, a of our study As result it is our jurisdictions, and the decisions of other pro allows to be which holding questions of purpose depositions pounded pre-trial the existence of liability information eliciting insurance and the limits of such policy in accord rule, and the one which is more is the better and of the Rules of philosophy the object, purpose with This is served object purpose Procedure. Civil broad. This of examination scope holding secrets, mysteries a to eliminate tendency will have of cases with- promote disposition and should surprises substantially just out trial and results in those cases tried. are Therefore, we conclude that the rule to show cause heretofore issued should absolute, be made and it is so ordered.
Mr. Justice Frantz Mr. Chief specially concurring, Justice Knauss, Mr. Justice Sutton Justice Mr. Hall dissenting. rehearing:
On The defendants and amici curiae have raised consti- questions rehearing. tutional in their briefs on Defend- interpretation (b) ants contend that the of Rule original opinion in this case constitutes a violation Sec. II Article of the Constitution of Colorado and of Sec. 1 of the Fourteenth Amendment to the Con- prohibit stitution of the United both States, of which deprivation liberty property proc- life, without due ess point of law. The contention of defendants on this is summarized in their brief as follows: require deprive
“To disclosure, would a defendant to large property extent of the value of that and to de- prive ‘liberty’ him sovereign of a of which the deprive process the citizen without due of law. respect deprivation property, policy of in- surance that must be disclosed is not as valuable as ais policy, the existence which need not be disclosed. brought This has been out wherein it was shown that leverage may be exerted the insured Defendants *12 company higher and his insurance to a effect settle- ment.” attorneys,
Amici according curiae, eminent who to represent companies their statement, which liability policies issue in excess of of all written 50% Colorado, in have also raised a number of constitutional questions. They argue that there has been a violation process, equal protection of due state and federal; of the guaranteed by Amendment Fourteenth the
laws as privileges in immunities Constitution; Federal Article and of Fourteenth Amendment violation of the Constitution; searches V, Sec. 25 of the Colorado of Amendment Fourth seizures in violation of the II the Colo- Article Federal Constitution and Sec. ruling finally argue They rado Constitution. province judiciary constitutes invasion Legislature. arguments carefully and au- examined the We have considered and have thorities set forth in the briefs arguments at the offered which were oral hearing of counsel including counsel, to all of extended was opinion that all of these amici and we are of the curiae, doubtful It seems to us without merit. contentions are Supreme United Court of the that the the extreme construction conclude that this Court’s States would provisions of a violation of its own rule constitutes Furthermore, the United States. the Constitution of any opinion, arguments disclose vio- our not, do these rights of the insured constitutional either lations of the any rights other at bar or or the insuror in the case parties to this action. insurors not although point however, out, wish to We rehearing, ruling questions is on on these constitutional pos- respondents questions at the earliest raised the a consider not be refusal to time and there should sible first that the determinations them based the fact rehearing. appear is that our The reason for this on following original opinion a notice to re- issued was response spondents' consisted, cause. Their show through dismiss the theirs, of motion to fault of no respondents anticipated petition. complaint had following disposition filing their motion an answer denied). (if announced our We first dismiss it were had that the defendants elected in the belief As a this con- stand the motion to dismiss. result of on hearing the merits has been extended to fusion, on *13 filing respondents. briefs has consisted of a This arguments. this All of followed the submission of oral rehearing. granting respondents’ motion for original opinion mistakenly de- stated questions relative to answer fendants herein had refused liability indi- The record to “existence of insurance.” divulge the limits cates that the refused to defendants only policy. liability This was the of their insurance presented. exist- issue Defendants admitted the here liability ence of insurance. pur- additional are indicated for the
Some comments pose procedural opinion we clarification. In the petition seeking complaint herein a writ treated the absolute. of certiorari. The rule to show cause was made However, the records of this Court show the fol- lowing order was issued: pleadings herein,
“On consideration of and briefs adjudged hereby it is and decreed that the rule ordered, - day on, to show cause heretofore and to-wit: the sixth hereby November, be, A.D. 1958 issued herein and it is, made absolute. adjudged
“It is further ordered and that the defend- County ants, District Court of the in the of Pueblo Tenth Judicial District and the John H. Mar- Honorable Judges they hereby be, are, salis thereof one commanded to rescind and revoke that certain order September 29, 1958, made and entered in civil action No. Mary 39,428, Sr., entitled V. Lucas and William Lucas, E. George Moore, vs. K. Moore and Plaintiffs, Grace Elaine lately pending denying plain- defendants, court, in said tiffs’ discover the insurance limits under policies owned the said at Moores the time of occurence of the automobile accident complained of. The defendants are further ordered require supply plaintiffs commanded to said Moores to requested herein and in said action with the information conformity with the filed herein.” petition, petitioners requested In their that the from the record” “expunge district court be directed to ab- made the rule was though order. Even previous The order not ordered. solute, relief was requested *14 “rescind and revoke the trial court to directed simply enter court directed that the former order.” It further re- the supply to an order the defendants commanding is an appropriate The above order information. quested words, In other one in this type proceeding. to the district court the to direct Court has authority is the re- and that in substance with its comply ruling order. of the above quirement quoted able and extensive have considered the carefully We curiae and of amici of counsel for defendants arguments as opinion original are of the we to and it is so ordered. here modified should be adhered Mr. Chief Mr. concurring. Frantz specially Justice and Mr. Justice Knauss, Mr. Justice Sutton Justice Hall dissenting.
Mr. specially concurring: Frantz Justice
Rule 26 is as follows: (b) court as provided
“Unless otherwise ordered by be examined rule 30 or (b) (d), deponent which is relevant matter, not regarding any privileged, action, pending matter involved in the subject ex- it relates the claim or defense of the whether any claim or other or to the amining party defense of cus- existence, nature, description, party, including documents, or books, and location of any condition tody, and location of and the things identity other tangible relevant facts. It is not persons having knowledge be inadmis- will objection testimony for ground reason- sought appears at if the testimony sible the trial of admissible discovery lead to the calculated to ably (Emphasis supplied.) evidence.” placed upon portion I believe stress should be for examination on relevant which provides any the rule relating any matter claim or defense of other party examining as claim well defense party. plumb-line testing It furnishes the as- interrogate concerning serted existence, amount, of insurance.
Immediately an assured is involved in an accident policy, covered his insurance he has in effect a claim against company. the insurance When the assured be- party party examining comes to a suit, the him has the right, (b), interrogate concerning under Rule 26 him against company. his claim the insurance believing provides Thus, that the rule for an examina- sought specially tion in the manner I here, concur in the opinion. majority
Mr. Justice Sutton dissenting: respectfully
I dissent. *15 majority opinion specific ques- The states that “The inquiry tion for is determination whether the mentioned subject pend- is ‘relevant to the matter involved in the ing meaning action’ within the rule, of this or whether relevancy as here used is restricted to evidence which testimony is at admissible the trial or which is reason- ably discovery calculated to lead to the of admissible majority evidence.” The conclude the former and I con- by reading entirety, clude that the rule in its proper construction we should do, the latter conclusion applicable My is the one. reasons are: (a) (b), clearly Rule 26 R.C.P. Colo., and un- equivocably requires testimony sought appears that “the reasonably discovery calculated to lead to the of admis- ” (Emphasis supplied.) agree evidence sible I cannot knowing liability that the the amount of insurance leads to
discovery any admissible evidence or to anything only else relevant to the issues. It can serve to force unjustified during settlements before or trial. ma- The jority opinion sought admits the evidence here Why not admissible. then, as have courts, some other improper grope believe, I and, as for external do we privacy? justify this invasion of reasons to Safety Responsibility Law, (b) Automobile Our anyone require to seq., not does ’53, 13-7-1, C.R.S. et be con- public liability should not carry insurance only fails it not In fact strued have that effect. coverage acci- require affirmatively before insurance pay- security provides occur but also dents money damages or securities form of in the ment of in- (section 28) may Thus an accident. made after has one who even surance need never be secured a it is true an accident. While been involved in if coverage person the insur- insurance has or loss whenever carrier shall become absolute ance 23), (section yet damage policy by such occurs covered plain- permit provision point I that this does out company aas defendant. tiff the insurance to name expressly insurance when the fact section sets forth coverage, being be held is not to there insurance carrier, “judgment creditor liable to public legislature declare the it If the so chooses coverage policy require for all insurance of this state to this court not done so and vehicles and drivers. It has legislative power field in invade has no already government regard has that arm of since spoken. premise majority opinion proceeds on the false carrying public purpose
that liability of a driver or owner public. protect I venture is to being suggest is, the true that human nature what *16 by injured protect purpose insured from claims is to judgment. parties An exami- be reduced liability insurance contract will dis- a modern nation of indemnify. purpose defend and Public is to close that policies liability in issued insurance Colorado are not Responsibility Safety “pursuant” Law and are not to our judgment party beneficiary contracts before under third regard ma- are not cited in this our statute. Authorities this matter. terial to (1931), Atl. 507, 154 9 N.J. Misc.
In Goheen v. Goheen injury personal action a 393, the court held that in plaintiff’s concerning interrogatories de on insurance and immaterial fendant’s automobiles were irrelevant presented This was ordered them stricken. issue and they “competent evidence.” because not lead to would the apply I would here. same rule
People (2d) (2d) (1957), v. Fisher 12 Ill. 145 N.E. a similar case upon opinion by majority 588, relied is justice to the dissenting, one court, one before us. There the with interrogatories seeking interpreted such pending a That “relevant” information for action. opinion. disagree course is where I with that In the Fisher court is that their case the Illinois careful to state “ * * liability requires in- statute certain minimum * * coverage point surance for motor vehicles I out requirement this is not a Statute. The Colorado authority Fisher decision discusses the division of on problem, citing pro several cases and con. It further states: plausible ring argument is a
“There in the Jeppesen McClure cases that if the existence liability logic amount disclosed, insurance must be every required demands that close his financial defendant must be dis- argument That
resources. is advanced But our in this case. it is answered statutory provisions that confer an interest such policy every public negligently member of the on that is injured, unique characteristics aof policy.” plaintiff statutory Colorado does not have a in- public liability policy. terest in a rejects
I would follow the authorities which Fisher because of reasons set forth in this dissent, and because prevailing based the different statutes in Illinois precedent for our court. *17 pre- I am not
In the legislation absence of express an party to hold that pared injured or intimate or say has the has an in a liability policy interest public — and that is the to an carrier direct sue insurance it care- actual is opinion, though effect of the majority yet. ful not to that far go assumed benevolence
(c) The stance protective in warm win- plaintiff clothes majority opinion at least ill ter but leaves a defendant nude or garb and the opponents clothed before the stares of his frigid His financial virtues He can have no public. modesty. seizure rapacious are exposed public gaze possible act without to whether is proper regard legitimate; i.e., All negligence. without due to his actual regard the then known placed upon because undue emphasis but inadmissible of the defendant to pay. ability in
It to me that the decisions the foot letting seems from the door on this matter have since wandered long the Hornbook tort suits are to be premise liability negli- based and tried whether the defendant was — be, rich he or his insurance carrier gent how or whether can in This damages. he whole respond adopts “new” which the now concept majority “modern rule” not ravishes cherished only principles law but can lead to troubles as unforeseen for only yet a sub- defendants trying compromise fairly stantial of insurance rates. raising making before rule absolute majority opinion states, “This will have to eliminate finally tendency and should secrets, surprises promote dis- mysteries cases a trial as well as position of without results on the just.” I trial which are ask substantially respectfully non how can the existence vel public insur- ance create secrets or or sur- any justiciable mysteries whether It has to do with the defendant prises? nothing respond was and should nor has negligent damages, the measure of I anything damages. to do with then ask, it should promote disposition of cases without why try Clearly money a trial? this is because it costs knowledge lawsuits and it is common companies defending usually pay an at least the cost *18 slight just liability, when action, even there is chance of trying Naturally to avoid that case the case. sort of go anyway, wouldn’t to trial and not have been would place filed in first the the if amount of insurance wasn’t suspected. Thirdly, why known or I will ask trial results “substantially just” be when there is known insurance coverage implication opposite result By “substantially must obtain where it not is known? just” only plaintiff can be meant that a will receive larger verdict or award where the amount of insurance coverage may presented known, is but fact not which jury, than when it is known. impugning present
Without the motives able plaintiffs bringing conscientious counsel ter mat- for in objection us, I before add the further ma- jority opinion public People policy. violates Fisher, supra, approved by majority opinion, states that one forcing coverage reason for the disclosure of insurance plaintiff’s amounts so that the counsel have will appraisal opponent in a realistic advance of his so diligently apply he will how know he must himself on behalf of client. his concept lawyer’s duty
It seems to me that this of a cry his a client is far from the historic and traditional legal profession taught ethics of the as in our schools law expressed lawyer’s attorney and in the oath. An who duty a undertakes a case on behalf of client is in bound prosecute ability, energy. it with all his skill and If pursued the cause is meritorious it should be to a con- clusion, desire; if that is client’s unwarranted claims every should I am not be undertaken. sure that member duty of the Bar our state concurs that it is his to do possible his best work his client and that Bar object anything itself will lower might justify lawyer, standards and which tend to a who lip only duty, paying cognizant service is not of his is insurance knows there to his cause unless he client’s being paid. coverage possibilities judgment deny inquiry un- I this broad would before present the ex- face of it flies der law because deny press language (b). I would further of Rule 26 public policy ground out that it sanctions concepts justice. harmony all our with granted. should be The motion to dismiss the Rule con- Hall Knauss and Mr. Justice Mr. Chief Justice cur in this dissent. upon the further
Mr. Chief Justice Knauss dissents ground deter- court has that he believes our no upon petition Mandamus. for Writ of mine this matter Justice dissenting: Mr. Hall *19 majority respectfully and
I dissent from the in Mr. Justice Sut- the set forth addition to matters point join, dissenting opinion, I in which wish to ton’s following my dissent. out the reasons for action, an At this the time of commencement of pending original proceeding court, before this there was County action, an No. in the District Court of Pueblo Mary Lucas, Lucas and E. 39,428, wherein V. William George plaintiffs K. and Grace Sr., and Moore were proceeding, parties this were de- Moore, Elaine plaintiffs 39,428 had de- fendants. In Action No. ques- from the defendants on two manded information liability (2) you (1) What insurance?; tions: Do have policy as to limits? Information was furnished- are question second, and as to the and the first refused September proceedings proper 29, 1958, John on after Judge Marsalis, Court, H. of the District sustained obliga- they were under no defendants’ contention divulge policy of insurance and limits their tion to denying plaintiffs’ order entered a formal final formal' motion order directing an defendants “ * * * under to set forth the limits of (Moores) liability defendants of policy [Moores] ** of date the collision 21, 1958, plain- this order and on October
Following “COM- court, tiffs filed their labelled: complaint PLAINT A MANDA- FOR WRIT IN THE NATURE OF MUS” Court and named as defendants: The District (1) District, of the of Pueblo in the Tenth Judicial County John H. (2) Marsalis, the Honorable one Judges thereof.
The real burden of herein is set plaintiffs’ complaint forth in XII thereof: paragraph
“The of order Defendant District Court Judge denying plaintiffs’ secure answers to said right ques- tions was an act exceeding [1] an abuse the Court’s jurisdiction in that under Court’s discretion and [2] Rule Rules Procedure, Colorado of Civil said 26(b), and answers relevant mat- questions are to the subject ter and in said civil proceedings involved action now pending.” (Emphasis supplied.)
The relief requested is set forth in the prayer: “WHEREFORE, plaintiffs pray [1] this Honor- able Court in the issue writ Man- nature Writ damus commanding the District Court of the 10th Judi- cial District in and for the Pueblo, County State Colorado, and the Honorable John H. Marsalis, one of thereof, Judges the record in expunge said from Civil Action No. 39428 that certain order issued said Court and on Judge September 29, 1958, denying plaintiffs’ discover the insurance limits under *20 the insurance owned policies by the said Moores at the time of occurrence of said collision; and, fur- ther, [2] that said District Court and said Judge thereof be instructed to said require Moores supply plaintiffs with the information requested.” (Emphasis supplied.)
On of this receipt complaint this court entered its order cause, to show as follows: in and directed appear
“You ordered hereby are ten within State of Colorado Court of the Supreme and writing answer from service hereof and days have, why can cause, any show if you relief herein should plaintiffs in the complaint requested he granted.” (Emphasis supplied.) two been announced has The majority second Novem- 9, 1959, March parts, the first dated as follows: closes 1959, part The March ber 1959. cause that the rule to show “Therefore, we conclude is so absolute, and it be made heretofore issued should ordered.” con- absolute opinion, 'making humble rule my
In this court stituted MANDATE of that: “ * * * * * * and the Honorable the District Court * ** in said from the record expunge H. Marsalis John * * * order 39,428 denying Action No. certain Civil limits under to discover the insurance plaintiffs’ the said Moores owned policies the liability * * * be instructed to and said thereof Judge require with the information plaintiffs said Moores to supply requested.” it is stated: opinion, two of the part majority this Court show that
“However, the records of following was issued: order “ herein, and of the briefs pleadings ‘On consideration and rule decreed ordered, adjudged it is hereby - on, day to-wit: the sixth cause heretofore to show is, be, A.D. herein November, hereby 1958 issued made absolute. “ adjudged ordered and the defend ‘It is further of Pueblo in the District Court ants, County Mar and the John H. District Honorable Tenth Judicial be, are, thereof Judges they hereby salis one of and revoke that certain order to rescind commanded 29, 1958, in civil action September and entered made Lucas, V. Lucas and William E. Mary entitled 39,428, No. vs. K. Moore and Grace Elaine Plaintiffs, George Sr., *21 deny- lately pending court, in said Moore, Defendants, ing plaintiffs’ right un- limits discover the insurance to by policies said der the owned the automobile occurrence of Moores at the time of the complained further or- are accident of. The defendants supply require Moores to dered and commanded to said plaintiffs the information and in said action with herein ” conformity opinion requested herein.’ filed with the (Emphasis supplied.) point misunderstanding, any I out
Lest there be promulgated by this court the clerk of this order was was unknown 8, 1959, on March all of which entered days ago, and so a of this dissent until few author pre- of this dissent knows was never far as the author disapproval. Surely approval this court for sented to clerk this court has no it must be conceded that the authority anything. adjudge If or decree” “order, anything grants than more, that order less or different expressed majority judgment in the court, of this opinion, nullity it is a and abortive. majority this court have
Plaintiffs’ counsel proceeding. divergent as to the nature of this views says complaint a “a in the nature Counsel of mandamus.” it is for writ part majority
At of the the time one opinion appears it conclusion had released, was no by majority man- been reached as to whether it was majority opinion certiorari, for the states: damus or petition complaint a shall treat this as if were “We seeking a mandamus the issuance of writ of or certiorari * * (Emphasis at law. as supplied.) same existed common is manifest the statement
Further confusion majority opinion part stated, wherein it is two contrary the above statement: [part complaint one] we treated the
“In our seeking (No petition a writ of certiorari.” herein as mandamus.) made of mention is making
Adding confusion, the rule absolute (the product constituted a ac- mandate a mandamus tion) judge. directed to the district clerk’s Even the majority, order referred valid, if it were *22 mandate. opinion, majority expressed contrary
The
un-
derstanding of all
matter,
counsel in
states that this
proceeding
is not a
under
that:
Rule 106 for the reason
apply
original proceedings.”
“This rule
does
contrary
Such statement runs
to dozens of decisions
original proceedings brought
of this court wherein
pursuant
district courts and this court
to this rule have
recognized,
approved.
been
sanctioned and
(2d)
Smith,
v.
137 188, Colo. 322 P. 1053, also referred into opinion, majority court, in a this unanimous en banc de- quoting cision, from Potashnik v. Public Service Com- pany (2d) Colorado, 126 98, Colo. 247 P. 137, stated: “ interlocutory ‘That writ of error review an order of the district court will not lie is conceded. That an original proceeding in the nature of certiorari under 106, Colo., Rule R.C.P. when directed to an endan- gered, fundamentally right, substantive and substantial recognized proper remedy is maintainable ” (2d) settled. Smith, 126, 119 Colo. 201 P. 609.’ Swift recently July, City County As as last court, (2d) Court, v. District 140 Colo. 342 P. Denver recognized bringing propriety 648, No. an 18,876, original proceeding under in the nature of certiorari Rule 106. precludes granting
Rule 106 this court from the relief requested herein. The rule states: “ * * * Review shall not extended further than to determine whether its the inferior tribunal has exceeded jurisdiction or abused its discretion.” majority removing
The this case from accomplishes nothing, those covered rule only principles rule states the well law. established “ * ** principal office of the writ is to control keep the action of an inferior tribunal and to it within * * —(cid:127) jurisdiction; §2 *.” a. C.J.S. bring up proceed- “The office of a certiorari is to ings they may examination, of the court below for quashed, any rights be affirmed or and not to enforce *23 growing proceedings, purpose being out of those its not — compel performance.” §2 14 C.J.S. a. 123, County People,
In Court v. 55 258, 752, Colo. 133 Pac. this court said: “ * * * elementary It is when writ of this char granted upon proper petition, [certiorari] acter response the inferior tribunal its certifies record in power reviewing thereto, the limit of the of the court is to ascertain from that record alone whether the in regularly pursued authority, ferior tribunal its thereupon pronounce judgment accordingly. §337 Code County Eagle Proceed., 1908, Civil Court Co., v. Rock 365, 706, 50 Colo. 367, 115 Pac. Koehn, v. 53 Colo. Morefield Pac. 127 234.” Bulger People, In v. 61 187, 800, Colo. 156 Pac. this court said:
“By §3 of art. VI of the Constitution this court has power to issue writs of certiorari and other writs therein enumerated. writs, however, Those are the common law writs, and under our decisions when a writ of certiorari solely is issued this court it is question limited 538 v. Leppel inferior tribunal. jurisdiction Dis v. 682;
District
Pac.
Court,
24, 27,
People
33 Colo.
78
v. District
trict Court,
Idem, 293,
908; People
80 Pac.
Court,
488,
30 Colo.
In 266 P. rel., 41, Denver v. ex 129 Colo. People 1105, this court said:
“On under Rule 106 upon certiorari, (4), review. as to Colo., R.C.P. courts are limited in their inquiry whether exceeded its jurisdiction, the Commission had discretion, pursued had abused its or had regularly Erie, Public Utilities Commission v. Town authority. 151, 92 Colo. 18 Pac. 906.” (2d) 626, Court, 525, v. District 72 Colo. 211 Pac. People this court said: lack
“We do not see that there was of jurisdiction. The court had was, whole case and jurisdiction course, the court that hear and deter- power had only mine the motion. had Having power necessarily — power to determine the either way grant, question — and it its decision follows however erro- deny neous not in excess of motion jurisdiction. was was therefore, discretion, since point involving any state juris- certiorari will lie for excess of only discretion, diction or abuse of the action of the great court is no more than error certiorari is not 575, Dilliard v. 69 Board, State Colo. 196 Pac. remedy. 866.” Board Pac. In Medical Colo. Spears, this court said: “ * * * The inferior tribunal had juris- unquestionably *24 It did not abuse discretion or diction. its fail regularly Neither the district its court nor pursue authority. this an upon investigation merits, court enter of may the or if the board made a mistake in findings its of inquire * * in its conclusions facts. *.” fact, upon erred states: majority opinion
The concluded that matter “We have the. should be deter-
539 dismiss motion and that mined on its merits * * *. should be denied. complaint be enter- should “We conclude question defendants [whether and that this tained policy in- of their required limits should be surance] to disclose its merits.” be determined on should merits, proceeding matter on In to determine the proceeded majority pursuant con- statements, the to said repeated pronouncements trary of this court precedent. sanction or without way general purpose ain of certiorari is stated
The §3: 524, in Am. Jur. “ * * * authority, According weight where of by statute, scope has not been narrowed of the writ juris- questions all office extends to the review of its authority power, tribunal to of the inferior diction, complained questions ir- all of, do the action question regularity proceedings, is, of the in the kept within the boun- tribunal has whether the inferior prescribed by express terms of the statute daries (cid:127) principles of the common law. law or well-settled only judgment certiorari affects of the court in “The judgment validity is, deter- record. That Moreover, valid or invalid. on mines that the record is statutory enlargement, only certiorari, in the absence proceedings validity had in' the the external superior court un- court examined lower supervisory juris- supervisory jurisdiction. der its in order re- diction the court cannot he exercised judgment correctness, as to its intrinsic either view (Emphasis sup- the case.” the law or the facts of plied.) Cummings, 83 Colo. Civil Com. v. Service
Pac. this court said: why reason the decree should be “There is another appropriate remedy. certiorari is the set aside even if generally state, as it law in It is. established *25 540 remedy extraordinary country,
this an that certiorari is jurisdictional questions inquiry and is restricted in its abuse of and, under our Code to manifest Procedure, a mean a failure of discretion, which we have held to regularly pursue authority. a court It is not flex- quash ible writ. All that can be under it is to or done proceeding complained quash refuse to of. 11 C.J. pp. rights growing proceedings §2. 88, 89, No out of such * * can be enforced. Carpenter People rel., 151,
In
v.
ex
112 Colo.
148 P.
(2d) 371, this court said:
“ * * *
jurisdiction
clearly
It is
settled in this
that the
only questions
to be determined
certiorari are the
jurisdiction
arbitrary
existence of
and the absence of
capricious
or
action or
Civil
abuse
discretion. State
Cummings,
Service
v.
379,
687;
Com.
Court v.
83 Colo.
265 Pac.
County
People
ex rel.,
258,
55 Colo.
133 Pac.
Handley,
(2d)
752; Board v.
“In a on certiorari the review to be con- jurisdiction. sidered is that of Whether the court acted arbitrarily, justly wisely, wholly beside * * mark. (2d) Court,
In Leonhart v. District 1, 138 Colo. 329 P. 781, court said: sweep
“Corrective measures are not within the coverage prohibition; correction of error is the func- power tion aof writ of error. A trial court has the wrong render as well as a decision. ‘Prohibition may having juris- never be used to restrain a trial court parties subject diction of the and of the matter from proceeding may a final conclusion. Nor it be used to committing deciding restrain a trial court from error in question properly it; before not be used in lieu aof writ of error.’ Prinster et Court, al. District de- May (2d) cided 19, 1958, 137 Colo. 325 P. 938.” pronouncement The most recent of this court, made Aurora v. 14, 1959, 18,196, October in Case No. City of 462, 345, Beth Medrosh 140 Colo. Congregation Hagodol, P. This court (2d): opinion. runs contra the majority *26 decision, in a: .unanimous one not justice participating, . said:
“Questions of
or
thereof do not
jurisdiction
excess
a cause. One
encompass consideration
the merits of
instance,
may,
assert a
claim before
meritorious
wrong-, tribunal,
and a
tribunal
enter
higher
pro
orders
in
hibitory
against
further
without
procéeding
manner
any
of the claim.
affecting
People
integrity
v. First Judicial
54
District,
237,
324;
Colo.
130 Pac.
State
Board v. Noble, 65 Colo.
Pac.
410,
141;
People
72 Colo.
Morley,
421,
643;
Board,
211 Pac.
Doran v. State
78 Colo.
There is good reason in in why original proceedings prohibition, and mandamus certiorari the court deter- mines only question jurisdiction and avoids deter- mination of the merits. This court does not have the it; it litigants' before cannot rights determine their or —duties we do have the inferior tribunal us before and under our we can supervisory powers determine ques- tions concerning jurisdiction.
As out pointed' above, the Moores are not before this court; have they never been served with or any process 39,428 notice. Case No. in the District Court of Pueblo County they were parties, were the Lucases. The had their parties had day court; their and they rights duties with reference to answering questions adjudi- cated a constitutional court by of unquestioned jurisdic- tion, over presided elected of- duly judge. unques- tioned and ability impartiality; was re- question solved on the motion of Lucases, who invoked' the aid judge and he exercise his requested jurisdiction and proceed, did, he heard proceed arguments, took matter under advisement ruled on the finally (albeit motion and. distastefully Lucases) judicially deter- answer; he need
determined Moores question mined merits.” “on its question identical this court Now redetermines having it two of “on its before merits” without parties proceedings. deter- Such to the district court my violation of both is in mination in federal and state constitutional humble proc-
guaranties of due jurisdiction. ess and is therefore void for want following quotation §26, Jur. from 30A Am. may seem trite: party that a of the law
“It is a fundamental doctrine day personal judgment have a must be affected opportunity In this connec- court, an to be heard. or broadly every man is sometimes declared tion, opportunity entitled to be heard in a court of law to an involving rights every question be- interests, his by any judicial ques- fore he is affected decision on *27 hearing judgment party tion. a court the The of without judi- giving opportunity heard is not a or him an to be rights, and is not entitled to cial determination of his * * respect any other tribunal. 295, §152,
In 14 C.J.S. it is said: pro- statutory “Unless authorized constitutional or cannot review the cause vision, court, certiorari, the on (Emphasis supplied.) on its merits.” page §174, At it is 319, said: “ * * * power reviewing annul, a court has no modify, any or revoke action of the inferior tribunal regularly pursued authority, where it has its no matter may Also, erroneous decision be. it has how the been reviewing power that court has no held the to enter judgment controversy, on the merits of the nor to direct any particular respondent judg- order the to enter * * ment. Fidelity Guaranty States and Co., In Ruth v. United (2d) (Fla.), the court said: 83 796 So. appellee’s
“It also contention that the ear- follows proceedings actually referred to ‘was an lier certiorari judgment’ appeal denial the a final from requested thereof an affirmance writ amounted to efficacy. legal neither court This this court without judgment common-law reverses the nor affirms supplied.) (Emphasis writ of certiorari.” App. Byrnes 55, 89 Board, 399 Ill. Retirement In plaintiff her (2d) with board had filed the N.E. arising The board her husband. claim out of death of petition whereupon denied Superior she filed a claim, Superior in common law certiorari. The Court proceedings, quashed of board’s Court the record respondent appealed Court from Appeals, which order Superior had that the Court which court found judgment. jurisdiction exceeded and reversed the court said: jurisdiction,
“It Board be conceded that the had must proceeded according law, that it that it acted on evi- fairly support its dence the evidence tends to proceeding are action. a common certiorari these In law pass only on.” circumstances which the court People App. High rel., In Canal ex Colo. Line Co. v. propriety of an that court had for consideration issuing a order the district court writ mandamus. holding improper, action such court stated: “ * * * [by mandamus] The courts will interfere not apparent parties, interests third wherever it is necessarily court, are involved. who are not before the ¥ (cid:127)!(cid:127) ¥ “ ** * Rights third [*] persons v [*] were shown to be in- persons volved, court, and those were before rights, judgment respecting his Eli Allen’s or those of *28 * * prejudice. might operate grantees, to their *. The re- sug- put basis, on but it is a versal offered as is not might gestion the difficulties which inter- to illustrate proceeding this sort of a un- vene if in court should adjudicate rights conferred the Bom- dertake berger contract.” Uncompahgre See, also, Colo. Assn. Co., 134 Colo. . (2d)
131,300 P. 968 (2d) Prinster v. District Court, 137 393, Colo. 325 P. original proceeding' prohibition, which was an in this court said: Judge Hughes,
“Plaintiffs in the action before as well as rights, enjoyed defendants who have decreed who rulings Judge Hughes, favorable at the hands of not are parties proceeding being to the and, before us before position adjudicate us, rights.” we are in no their majority opinion heavily of this court on relies dealing our statute with motor vehicles and in- requiring surance requested as basis for in- given. formation statutory requirement be There is no operator any carry aof motor vehicle insurance. entirely optional. Whether to do so or not is The ma- jority, speaking Safety of the so-called Automobile Responsibility Act, states: “ * * * object provide compensation Its ultimate is to persons might injured for innocent through who * * faulty operation of motor vehicles. It would seem purpose that if this were the ultimate legislature required operators carry would have purpose” might so that the “ultimate have becoming some reasonable reality. chance of In seek- ing purpose object legislation, determine the given some purposes consideration should be expressed by legislature adopting Chap- the Act. (now ter Session seq.) Laws 1935 C.R.S., 13-7-1, et purposes quite foreign states of the Act to those as- n (cid:127) signed by majority opinion:
“AN ACT RELATING TO THE OPERATION OF MOTOR AND OTHER VEHICLES UPON THE HIGHWAYS OF THE STATE; TO ELIMINATE THE RECKLESS AND IR- RESPONSIBLE DRIVERS OF MOTOR VEHICLES FROM THE HIGHWAYS; TO PROVIDE FOR PROOF OF FINANCIAL RESPONSIBILITY BY OWNERS *29 VE- AND OTHER MOTOR OF AND OPERATORS AND THE SUSPENSION FOR HICLES; TO PROVIDE AND CHAUFFEURS’ OF OPERATORS’ REVOCATION REGISTRATION; OF AND CERTIFICATES LICENSES THIS ACT OF FOR ENFORCEMENT PROVIDING HEREOF.” THE VIOLATION FOR AND PENALTIES ma- discussing feature, insurance In further jority opinion states: may although a defendant conceivable
“It is also notify properly liability he fail to insurance have seriously neglect would This insurance carrier. his Responsibility Safety plaintiff prejudice under plaintiff to ascer- of the it in the interest Law. Thus is liability cov- pertaining insurance to tain all of the facts erage, including has been notice there whether carrier.” majority part one of statement, contained
This predicated erroneous opinion, on the seem would opinion, part corrected one of the contained in statement part two: “ * * * propounded questions to the ex- relative were * * * liability re- the defendants insurance istence of * * to answer. fused companies Understandably, noti- want to be insurance might whereby they have accident of an fied of the facts place provisions policies their under some therein furnished with requiring Plaintiffs were notice. presumably insurance, all the fact of as to information of the information policy except limits, and desired position plaintiffs consequence were in thereof as a give they would not be “seri- required notice so failing give It prejudiced” notice. would ously Lucases to presumptuous for and fatuous somewhat of the limits notify carrier Moores’ policy had issued. ,that it itself John decision, the Honorable consequence
aAs this court with a mandate of confronted Marsalis is H. order, dis- an “expunge” court records from posed of a motion which was filed attorneys plaintiffs in the case then pending before him. If mandate is carried out then there would still remain undisposed the motion.
Strange indeed to I me, and law, believe to the that a duly elected constitutional judicial official, called upon to rule upon motion filed by plaintiff, pursuance his sworn duty, sets the matter for argument, hears ar- guments and rules on motion, should now in a pro- of this ceeding type, proceeding plaintiffs say “in the nature of mandamus” and which the majority — pronounces to be certiorari, be directed to expunge — — — to destroy to erase to blot out such obliterate record so made his change on the motion ruling pending. To such I do not subscribe.
Mr. Chief Justice Knauss and Mr. Justice Sutton have authorized me to state that in this dis- they join sent. 18,358.
No. Marilyn Doll W. Robert Earl Doll. (345 723) [2d] P. Decided November 1959.