*1 Larry F. Charles appellee, Jr., Horbach, Walls, J. through Duin, minor, John Duin, and David his father friend, next v. Livestock Press appellants. Company, a Nebraska corporation, et al.,
Michael McCormack of Mooney McCormack, Carpenter Kelley, Matthews, and John T. Cannon Carpenter, appellees. for
Heard before Spencer, Boslaugh, Smith, McCown, JJ. Newton, Clinton, Smith, J. adjudged
In two cases court the district defendants Company Larry Press Livestock tempt J. Horbach in con- pretrial interroga- of court refusal answer interrogatories requested tories. information about any policies against terms of the re- alleged appeals spectively liabilities. On Livestock (1) court the contentions that the erred Horbaeh objections interrogatories (2) overruling to the in usurped changing by materially function discovery. rules of *2 patterned pre-1970 statutory after Rules sections, 30(b),
26(b), 26(d), Federal Rules Civil Pro- of §§ 25-1267.02 amended. cedure, S'ee, not been have they 1943. In 1964 we decided that 25-1267.38,R. R. S. ordinarily of disclosure information not authorize did judges policies. liability Three dis- insurance 2d Neb. sented. See Mecke legisla- of a one asserts manifestation No subject except since on intention, silence, one tive 1964. The federal courts are
Decisions of other divided. controversy of disclosure resolved in favor was Opinions of commentators in 1970. rules amendments of judicial Holt- 2A Barron and division. reflect See, p. § 647.1, Procedure, Federal Practice and zoff, 1961); (Wright, Davis, “Pretrial of Ed., Rev. (1970); Wayne Coverage,” Rev. Insurance Liability §§ 25.04, Long, 25.02to Insurance, The Law of par. Practice, Federal p. 4 Moore’s 25-16 25-3 to (2d 1972); Wilkerson, 26- p. “Rule Ed., 26-335 26.62, and Water L. Bed,” 5 Land Procrustean (1970); Wright Proce- Miller, Federal Practice and p. § Civil dure: prospectively overruled, ef- is
Mecke as are summarized Our reasons 1973. fective (T)he question itself to whether resolves “. . . follows: subject matter of relevant is such information relevancy requirement (T)he of . . the action. . liberally sense, common legalisms. . . . The in- narrow in terms of than rather only virtually the unique it is surance judgment collectability which bearing of the fact on or all. from defendant plaintiff ascertain must permits a Knowledge insurance to defendant’s as . more realistic of appraisal leads to settlement of cases which otherwise would trial.” go 2A Barron cit., 647.1, Holtzoff, op. § pp. 82. See, Bahr, supra Mecke v. J.,C. dissent (White, ing) ; cit., Wright op. § Miller, p. interpret statutory provisions by adopting the of 26(b) (2), Rule Federal
language Rules Civil Pro- cedure: “A may obtain party exist- discovery ence and any contents agreement under which on person carrying an insurance any business be liable or all may satisfy part judgment which in the or may be entered action or reim- indemnify made to burse payments In- judgment. the insurance concerning formation agreement not by reason of disclosure admissible evidence trial. For this purposes paragraph, application for insur- ance shall not treated as be an insurance part agree- ment.” Our shall become interpretation effective March 1, 1973.
The contention that our conclusion in the setting of
the Mecke interpretation
usurps
func
legislative
Atkins,
tion
“.
is troublesome.
See
. .
Amend
Proposed
ments
Relating
Insurance Coverage
Ins.,
1968
A.B.A.
.”,
Negl.
L.
Proceedings,
Comp.
579;
575
“Pre-Trial
at
Discovery of Insurance
Fournier,
Limits,” 28 Fordham L.
215
Coverage and
at 232
35
L.
Tenn.
Rev. 35
69
(1959); Comment,
True,
We are nevertheless
“.
persuaded.
stare
social
decisis embodies
It
important
policy.
repre
law,
continuity
sents an element of
in
rooted in
need to
expectations.
reasonable
psychologic
But stare
not a
principle
decisis
mech
anical
v.
Helvering
Hallock,
formula.
. . .”
U.
S. 106
604, 125
444,
84 L. Ed.
A. L. R.
119,
60 S. Ct.
in . .
(legislative)
“It is at best
find
treacherous
si
a controlling
lence
rule of
adoption
alone
law.”
States,
69,
For this court to now a rule construction which circumstances, tical pears legislative span approval over to have met years invasion of the is an obvious of function. legis- brought change Any act. lative Sloggett, Swearingen, v. Cecil
William 2d 442 January 12, 1973. No. 38528.