State Ex Rel. Bronson v. Superior Court , 194 Wash. 339 ( 1938 )

BEALS, MAIN, and BLAKE, JJ., dissent. On August 4, 1937, Margaret Rutschow, being the owner of 1553 shares of the capital stock of Apex Brewing Company, a corporation, entered into negotiations with Robert E. Bronson, as agent for an undisclosed principal, for the sale of her stock. Thereupon, Robert E. Bronson, one of the relators, "as attorney and agent" for undisclosed principals, and Margaret Rutschow signed a written instrument, whereby the latter agreed to sell her stock for the sum of $9,318. In accordance with the terms of the contract, the stock certificates and the money were placed in escrow with Seattle First National Bank, to be delivered to the parties, respectively, upon verification by an auditor of the brewing company's balance sheet. The audit having been made, Bronson, on September 30th following, advised the bank that the option to purchase the stock would not be exercised, and directed the escrow holder to return the stock and money to the respective owners thereof. Within a few days thereafter, Margaret Rutschow instituted an action in the superior court for King county against Bronson and wife and the bank, alleging that a completed sale of the stock had been made by the parties, and that the bank had refused to deliver the purchase price to her. Judgment was demanded against Bronson and the marital community consisting of himself and his wife, and against the bank.

In the bank's answer to the complaint, it is alleged that Bronson's failure to carry out the option was the result of the audit, the accountant who made the same reporting that the actual net assets of Apex Brewing Company amounted to 18.75 per cent less than as shown by its balance sheet; the contract between Mrs. Rutschow and Bronson providing that the latter was obligated to complete the purchase of the stock only if the audit should show assets within ten per cent of the company's figures.

Mrs. Rutschow, in the course of her action, propounded to Bronson certain interrogatories, in the following form:

"(1) Is your name Robert E. Bronson?

"(2) Are you one of the defendants in this action?

"(3) On or about August 4, 1937, did you sign a certain document entitled `Escrow Agreement,' a copy of which is attached to and made a part of the amended complaint in this action?

"(4) What is the name and address of the principal for whom you acted in signing said contract?

"(5) If you acted for more than one principal, what are the names and addresses of each of said principals?"

Bronson moved to strike these interrogatories, on the ground that the information which they sought to elicit was immaterial to plaintiff's cause of action as alleged in her complaint. Before final ruling upon this motion, Mr. and Mrs. Bronson were permitted to file an amended answer, in which they expressly admitted that, if it were adjudged in the action that Bronson is responsible to Mrs. Rutschow, the marital community would be liable; in other words, recognizing that the plaintiff's claim, if it should be established, would constitute the basis for a judgment against the marital community. At the same time, defendants paid into the registry of the superior court, pursuant to a paragraph of their amended answer, the sum of ten thousand dollars in cash, stating in their answer that plaintiff should be entitled to recourse against this fund for payment of any final judgment which she might obtain in the action.

After the filing of this answer and the payment of the ten thousand dollars into the registry of the court, the court entered an order denying Bronson's motion to strike the interrogatories. Upon the entry of this order, this proceeding was instituted in this court by Robert E. and Marie Bronson, as relators, for the purpose of procuring a writ of certiorari reviewing the order of the trial court denying their motion to strike. An order to show cause why a writ of certiorari should not be issued having been made and served herein, respondent has interposed a motion to quash the order to show cause, and has also filed herein a complete return, it having been agreed by the parties in open court that if this court overrules respondent's motion to quash, the matter may be finally determined upon the merits.

The motion to quash should be, and is, denied.

Interrogatories 1, 2, and 3 have been answered by relators in the pleadings filed in the court below, and we are now concerned only with interrogatories 4 and 5.

Relator moved to strike plaintiff's interrogatories directed to him on the ground that questions 4 and 5 are not necessary to the support of the action of the plaintiff, and their purpose is not to elicit facts material to the controversy between plaintiff and defendant.

The only issue raised by the pleadings is whether the net assets of the Apex Brewing Company, as reflected in the audit made, justified Bronson's failure to purchase the stock pursuant to the terms of the escrow agreement, and the refusal of the bank to deliver over the money for the purchase price to the seller of the stock. The plaintiff in that action, by propounding interrogatories, is engaging in a pretrial practice which did not exist at common law.

[1] Rem. Rev. Stat., § 1226 [P.C. § 7760], provides:

"Instead of the examination being had at the trial, as provided by the last section, the plaintiff, at the time of filing his complaint or afterwards, and the defendant, at the time of filing his answer or afterwards, may file in the clerk's office interrogatories for the discovery of facts and documentsmaterial to the support or defense of the action, to be answered on oath by the adverse party." (Italics ours.)

The device which this statute recognizes and permits affords a means for the discovery of material facts relating to a controversy before the trial of a case.

Rem. Rev. Stat., § 1230 [P.C. § 7764], provides:

"If a party refuse to attend and testify at the trial, or to give his deposition, or to answer any interrogatories filed, his complaint, answer or reply may be stricken out, and judgment taken against him, and he may also, in the discretion of the court, be proceeded against as in other cases for a contempt: Provided, that the preceding sections shall not be construed so as to compel any person to answer any question where such answer may tend to criminate himself."

Relators are, of course, desirous of avoiding having meted out to them the penalties to which contumacious parties may subject themselves by refusing to answer interrogatories, namely, the striking of their pleadings and the taking of judgment against them by default.

Since Rem. Rev. Stat., § 1226, is in derogation of the common law, it must be strictly construed. Under the language of this statute, the scope of interrogatories has been expressly restricted. It is essential that the facts sought to be elicited by the interrogatories be material to the support of the defense or of the litigant's cause of action.

"The fundamental rule on this subject is, that the plaintiff's right to a discovery does not extend to all facts which may be material to the issue, but is confined to facts which are material to his own title or cause of action; . . . As a direct inference of this general rule, all the facts which the plaintiff seeks to discover must be material; the defendant is never compelled to disclose matters which are immaterial as evidence to support the plaintiff's contention; he is never obliged to answer vexatious or impertinent questions, asked from curiosity or malice." 1 Pomeroy's Equity Jurisprudence (4th ed.), 292-296, § 201.

"The courts are generally agreed in the view that statutes allowing discovery should be so construed as to prevent abuse. The privilege of examining an adversary in advance of trial should not be allowed to become a means of oppression. As under the ancient practice in discovery, a mere `fishing bill' is not tolerated. Questions which are prompted by mere curiosity or impertinence, which have no bearing upon the case, or which recklessly and unnecessarily tend to annoy or to expose private affairs, should not be allowed." 5 Jones, Commentaries on Evidence (2d ed.), 3826, § 2060.

We have uniformly held that the interrogatories must be material to the support of the action or defense of the party propounding the same. Cully v. Northern Pac. R. Co., 35 Wash. 241,77 P. 202; Lawson v. Black Diamond Coal Mining Co.,44 Wash. 26, 86 P. 1120; Brooke v. Boyd, 80 Wash. 213,141 P. 357, Ann. Cas. 1916 B, 359; Hill v. Hill, 126 Wash. 560,219 P. 18; Kelly-Springfield Tire Co. v. Lotta Miles Tire Co.,139 Wash. 159, 245 P. 921. To the same effect: 2 Nichols, Applied Evidence, (1928), 1757, § 4; 18 C.J. 1102, § 79.

The burden of proving materiality, when that fact is questioned, rests upon the party propounding the interrogatories.Lawson v. Black Diamond Coal Mining Co., supra. After a careful consideration of the pleadings, we conclude plaintiff has not met this burden, and the facts sought to be disclosed by the interrogatories are not material to the support of her cause of action.

The interrogatories therefore must be stricken. It is so ordered.

STEINERT, C.J., MILLARD, GERAGHTY, ROBINSON, and SIMPSON, JJ., concur.