Watkins v. Cope

| N.J. | Apr 1, 1913

Parker, J.

The. interrogatories appear to fall into four classes:

1. Those directed to plaintiff’s place of residence now and in the past, his business, and famity relations. (Nos. 1, 2, 3 and 9.)

2. Circumstances leading up to the alleged exclusion from the inn, plaintiff’s arrival at Water Gap, why he went there, his previous visits and acquaintance there. (Nos. 4, 5, 6, 7 and 8.)

3. Details of plaintiff’s damage by reason of the alleged exclusion, the time of leaving defendant’s house, whither he went, what conveyance he used, and (as a result of the alleged slander) what persons heard the words charged to have been spoken, and what persons refused to associate with or give credit to plaintiff as a result of said words. (Nos. 3, 10, 11, 12, 14, 15 and 16.)

4. Names and addresses of witnesses that plaintiff will call to prove the slanderous words. (Nos. 13, 14 and 15.)

In dealing with a practice motion relating to interrogatories under section 140 I deem the following rules to be well settled:

1. The interrogatories should relate to the case of the party presenting them, and should not be used for the mere purpose of prying into the case of his adversary. Wolters v. Fidelity Trust Co., 36 Vroom 130; Pom. Eq. Jur. (1st ed.), § 201; though the party may compel discovery of facts material to his own cause of action, even though the defendant’s evidence be incidentally disclosed. Ibid. So as to the names of emploj'es operating defendant’s trolley car on which plaintiff was injured; Dodd v. Public Service Corporation, 29 N. J. L. J. 22; or defendant may ask for facts showing plaintiff’s contributory negligence. Cohen v. North Jersey Street Railway Co., Id. 298; that being a defence in this state, and plaintiff not being required to negative it in the prima facie proof. New Jersey Express Co. v. Nichols, 4 Vroom 434; Durant v. Palmer, 5 Dutcher 544; Consolidated Traction Co. v. Behr, 30 Vroom 477. Defendant is now required to plead it. Rule 40 appended to Practice act of 1912.

2. An interrogatory must be directed-to some matter material to the issue. Practice act 1903 (Pamph. L., p. 595), § 140.

3. Ft should be of such character tliat with a responsive answer it would be relevant and competent evidence for the party propounding it; for this is the manifest purpose of the statute. Practice, act, § 140; Dodd v. Public Service Corporation, supra.

4. The same case also holds, and I think correctly, that an interrogatory intended merely to obtain the names of witnesses, especially witnesses whom the other party expects to call, is bad. See, also, Pomeroy, ubi supra.

5. T am clear also that it was never intended by this section of the Practice act to permit interrogatories to be used as a demand for particulars of the other party’s case. It is true that section 102 of the Practice act of 1903 provides only for a demand of particulars in contract eases; but I do not understand that this in any way abrogated the common law practice of directing a bill of particulars to be furnished by either party in a proper case, whether of contract or tort. Section 102 was repealed by the act of 1912, but rule 18 appended to the latter act says that “bills of particulars may be ordered as heretofore'.” The rule at common law was well settled that in a proper case particulars would be ordered in all classes of legal actions. 2 Arch. Prac. (7th ed.) 1030; Tilton v. Beecher, 59 N. Y. 176, 184 (action of crim. con.) ; Dwight v. Insurance Cos., 84 Id. 493 (particulars of alleged breaches of warranty set up by defendant); Cunard v. Francklyn, 111 Id. 511 (particulars of defence in action for conversion); Com. v. Snelling, 15 Pick. 321, 331 (particulars in criminal case) ; Taylor v. Harris, 4 B. & A. 93 (particulars of plea in abatement). For particulars in libel and slander cases, see Odg. Lib. & S. *533; Towns. Sl. & L., § 273; Newell Lib. & S. (2d ed.) 745. The rule as broadly laid down in the famous case of Tilton v. Beecher, ubi supra, with abundant citation of authority, is that “a hill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put for trial with greater particularity than is required by the rules of the pleading.” An examination of the above authorities and other authorities cited therein will show, that information of the character called for by the interrogatories of class 3 has habitually been obtained by a demand for particulars. The rule was laid down some years ago by Mr. Justice Garrison, obiter, in Heppard v. Carr & Smith, 12 N. J. L. J. 186, 187. The right to get the desired particulars of the adversary’s case being already enforceable by a demand for them and, if necessary, by an order of court, it is plain that the use of interrogatories to draw them out is improper. I have gone at some length into this matter because the practice does not seem to be so well understood as it should be, and because attempts are so frequently made to obtain these particulars by interrogatories, as in the present case.

Turning to the motion before me, it results that of the .interrogatories in class 3, numbers 10, 11, 12 and 16 are incompetent as mere demands for particulars and must be struck out. Numbers 3,14 and 15 are also classified elsewhere and must be furthet treated. But as demands for particulars they are incompetent.

Numbers 14 and 15 fall with No. T3 into class 4, embracing demands for names and addresses of intended witnesses. Eor reasons already stated these are incompetent so these three interrogatories are stricken out.

The propriety of the first and second classes depends on the character of the defence to be offered. If defendant intends to justify on either count or on both, I think he is entitled to go into plaintiff’s .status and past history and his business in coming ‘to the Water Gap. Eor example, he would be entitled by way of justification to show if he could that plaintiff was a card sharper, or a hotel thief, or was intoxicated, or engaged in some unlawful or immoral occupation that rendered him unfit to stay among respectable people at a respectable hotel and perhaps that on account of his dissolute habits and unusual business his wife refused to live with him. Interrogatories 1 to 9 are all relevant on these points if the defendant is entitled on the record to set up this defence. But I think he is not. It is elementary that justification must be specially pleaded in slander; and I think it should also he pleaded to the first count. This was the course of pleading in Shubert v. Nixon Am. Co., 54 Vroom 101, a somewhat similar case though based on ejection from a theatre, whose proprietor was under no legal obligation to admit patrons. Whatever may have been the rule at common law (see 1 Chit. PI. 527; contra, form of justification for ejecting plaintiff from an inn because he made a disturbance, 3 Id. 1074), rule 40 subjoined to the new Practice act provides (Pamph. L. 1912, p. 391, 392) that the answer "must specially state any defence which, if not stated, would be likely to cause surprise, or would raise issues not arising out of the complaint.”

I consider that both the defence of justification in slander and of unfitness to be entertained at an inn, are defences contemplated by the rule and so not maintainable unless specially set up in the answer. Neither is pleaded. Hence interrogatories Nos. 1 to 9 being relevant only to one or the other character of defence, must be struck out on the present record, No. 3 being incompetent also under class 3.

A rule may be entered in accordance with these views.