180 Mass. 51 | Mass. | 1901
There are two bills of exceptions in this case.
One of them was to alleged rulings and refusals to rule upon a motion for a new trial. This bill the judge disallowed. He also certified that he overruled the motion for a new trial on grounds of discretion and not upon a ruling of law. The case was sent to a commissioner, who reports that at the hearing on the motion the plaintiff’s counsel asked rulings that certain expressions in the charge were expressions of opinion sufficient to entitle the plaintiff to a new trial, and that certain portions of the charge were argumentative. No exception to the charge was saved. With regard to this bill it is enough to say that a party who has failed to except to a ruling at the trial cannot reopen
The other bill of exceptions is to a refusal of the court to order the defendant’s president to answer certain interrogatories. The general principles to be applied are settled by Gunn v. New York, New Haven, & Hartford Railroad, 171 Mass. 417. The president stands in the place of the corporation, Pub. Sts. c. 167, § 53, and the corporation, being reputed to have done whatever'a its servants did in the course of their employment, is supposed to know what they did, and therefore cannot shelter itself under a general profession of personal ignorance on the part of its president. Compare Bolckow v. Fisher, 10 Q. B. D. 161, 171; Attorney General v. Rees, 12 Beav. 50, 54, 55. Of course the knowledge of the corporation is a fiction and therefore its obligation to answer is not to be pressed beyond what is reasonable, as was explained in the case cited. But if in the case of an accident like the present the servants concerned are still in the employ of the company and within convenient reach, they must be inquired of concerning facts which the plaintiff has a right to know. If the result of inquiry is to satisfy the president’s. mind as to any of the material facts or circumstances, he must answer interrogatories in proper form which call for them.
The eighth to the thirteenth interrogatories concern matters as to which the plaintiff has a right to inquire. They concern material facts in his case, that is to say, the conduct of the corporation at the moment of the accident, or just before. The facts are part of the plaintiff’s case none the less that the defendant’s case may consist in pressing a different view as to what the facts were. They are like the place where the plaintiff fell and the time during which the mats over which she alleged that she tripped had been in the same position before the date of the accident, concerning which it was held that an . interrogatory must be answered in Toland v. Paine Furniture Co. 179 Mass. 501. Therefore the plaintiff was entitled to an answer, to these interrogatories subject to what we are about to say. The thirteenth might be too vague if it stood alone, but it
But the right to interrogate is not a right to abridge the other party’s right to try any fairly doubtful fact. Still less is it a right to require him to offer an opinion on the general issue of the case, or to state his view of it and to that extent to disclose his defence. Therefore the judge was right in refusing to compel an answer to the fourth interrogatory, “ What caused the collision ? State fully.” See Bechervaise v. Great Western Railway, L. R. 6 C. P. 36, 38. So as to the fourteenth, apart from other objections. And if,[with regard to the eighth or any/ otherJthe president can say with truth, after reasonable inquiry, that he is unable to ascertain what the facts are, an answer to that effect would be enough. So again, as is said in 171 Mass. 421, the interrogator cannot compel the other party to get up his case for him. Therefore he cannot ask what particular possible witnesses would testify. It seems to us that, although they have another aspect, the fifth, sixth and seventh interrogatories practically are questions of this sort. The twenty-third calls for information which the defendant is not presumed to have by reason of its relation of master, and which therefore it is not bound to obtain for the plaintiff’s benefit.
Exceptions sustained.
