Cutter v. Cooper , 234 Mass. 307 ( 1920 )

Rugg, C. J.

This case comes before us rightly on exceptions to the refusal by a judge of the Superior Court to order interrogatories to be answered. Brooks v. Shaw, 197 Mass. 376. The interrogatories were filed pursuant to St. 1913, c. 815. It is provided in § 1 of that act that “Any party, after the entry of an action at law or the filing of a bill in equity, may interrogate an adverse party for the discovery of facts and documents admissible in evidence at the trial of the case.” By § 9 of the act §§ 57 to 67 both inclusive of R. L. c. 173, are repealed. The practice respecting interrogatories thus has been greatly broadened. There were important restrictions upon the right under earlier statutes. These are pointed out in Wilson v. Webber, 2 Gray, 558, and Grebenstein v. Stone & Webster Engineering Corp. 205 Mass, at page 431, and cases collected at page 439, and need not be repeated. Under St. 1913, c. 815, however, the scope of the subjects about which interrogatories may be asked is as broad as the field of inquiry when the person interrogated is called as a witness to testify orally in the actual trial. Looney v. Saltonstall, 212 Mass. 69, 74. The only qualification of this general statement is in § 3 of the act and relates simply to disclosure of names of witnesses, as to which it is conceivable that in proper instances a party might be questioned if he became a witness at a trial. It is provided by § 3 of the act that “no party interrogated shall be obliged to answer a question or produce a document which would tend to criminate him or to disclose his title to any property the title whereof is not material to an issue in the proceeding in the course of which he is being interrogated, nor to disclose the names of witnesses,” with exceptions not here material. It is elementary that a party called as a witness in a civil cause cannot be compelled to incriminate himself, Evans v. O’Connor, 174 Mass. 287, 290, 291, nor to give testimany not material to the issues on trial. The statute thus by express terms makes applicable to interrogatories fundamental rules applicable to the presentation of evidence. The words of § 3, that in the event of refusal to answer “the court shall, upon motion, ' order the party interrogated to answer such of the interrogatories as it finds proper,” do not vest in the judge an untrammelled discretion upon the subject. They impose the duty to act according to sound principles of law, having regard to all pertinent factors and general rules of evidence.

The circumstance that there has been a trial at which the facts . sought by the interrogatories might have been the subject of evidence is by itself no sufficient reason why a party may not have i' reviewed the decision of the judge in refusing to order answers to * be made." j It was said by Chief Justice Gray in Baker v. Carpenter, 127 Mass. 226, at page 228, “that the party, if he seasonably files proper interrogatories, is entitled to be informed of such facts in advance, so as to assist him in preparing for trial; that any error of the court, in refusing to order a disclosure of such facts, is not cured by the introduction of, or opportunity to introduce, testimony on the same point at the trial.” Gunn v. New York, New Haven, & Hartford Railroad, 171 Mass. 417, 421. Whenever, therefore, the rulings of the judge have resulted in a denial of the right to secure disclosure of facts having a substantial relation to the issues involved, there is good ground for exception unless it appears that the substantial rights of the excepting party have not been injuriously affected.

The principle of trial evidence, to the effect that ordinarily no !' exception will be sustained to the refusal to allow a question to the put unless the substance of the answer expected in reply is stated to the court, does not apply to interrogatories. Where I questions are asked of a witness at the trial, if there has been 1 proper preparation, counsel usually has more or less well grounded 1 reason for anticipating the testimony to be given. Interroga- : tories commonly are propounded to an adversary party for the i purpose of ascertaining material facts in advance of the trial. . The interrogator may be in utter ignorance of the information j likely to be disclosed, and be unable to make any offer of proof. I Ilis right to interrogate does not depend primarily upon the ques- : tian whether the answers will help or harm him in the ultimate ■ decision of the case. On the other hand, exceptions ought not to i be sustained unless there is solid foundation for belief that ! substantial injury has resulted. Interrogatories should not be j suffered to become a training field for the saving of exceptions j possessing only a theoretical merit, having no relation to the j practical administration of justice.

The plaintiff’s declaration alleged in substance in the first count that the plaintiff’s wife was persuaded to leave him through the intentionally unlawful influence of the defendant, and in the second count charged the defendant with criminal conversation with the plaintiff’s wife. No date was alleged in the first count for the exercise of the acts there set forth. The defendant’s answer was a general denial and the statute of limitation.

Under these pleadings issues were raised concerning the fact and the timé and the duration of leaving the plaintiff by his wife, and all the contributing causes flowing either from the conduct of the plaintiff or of the defendant and the measure of damage resulting to the plaintiff from those causes for which the defendant was responsible. There was involved the actual state of the conjugal affections of the wife, because if a feeling of indifference or repugnance on her part toward the plaintiff preceded and accompanied the defendant’s relations with her, there could be little or no recovery under the first count for simple alienation of affections. Lanigan v. Lanigan, 222 Mass. 198, 200. Servis v. Semis, 172 N. Y. 438. Even under the second count, where the essential injury alleged to the husband was the defilement of the marriage bed and the invasion of his exclusive right to marital intercourse with his wife, Bigaouette v. Paulet, 134 Mass. 123, 126, the real attitude of mind of the wife toward the husband was important in its bearing on damages. Palmer v. Crook, 7 Gray, 418. Hadley v. Heywood, 121 Mass. 236.

It was not necessary for the defendant to set up special matter in his answer to raise all these issues. They were open under the general denial. Divorce Rule 9, as to specifications of defence, and the general practice upon libels for divorce as set forth in Newman v. Newman, 211 Mass. 508, 511, are not controlling in actions at law such as the present.

The propriety of the interrogatories must be tested in the light of these principles and issues.

It becomes necessary to examine in some detail the interrogatories propounded and not ordered to be answered.

A group of questions refers to trips to California by the plaintiff and the reasons therefor. These bore upon the conduct of the plaintiff toward his wife. If for long periods he absented himself from her without adequate cause, her feelings toward him may have been affected and his own indifference to her regard might .be inferred. Interrogatories 6 and 7 are of this nature.

Adequacy of support of his wife by the plaintiff and the relation between his income and his expenditures in her behalf had a bearing upon their state of mind toward each other. This involved some inquiry into the kind and extent of business in which the plaintiff was engaged during his marriage, the amount of his property and income, and the nature and sources of support available to his wife during his absences. The interrogatories directed to these points should have been answered and include numbers 8, 9, 10, 11, 13, 14, 15, 18, 19, 38, 40, 42.

Questions 47 and 48 sought information respecting the plaintiff’s use of intoxicating liquor and being under its influence during the years 1903 to 1909 inclusive. It requires no argument to demonstrate that this subject bore upon the relations of the husband and wife, and the state of their mutual affection and respect. Answers to these interrogatories did not tend to criminate the plaintiff. They did not relate directly to the crime of drunkenness. Whatever difficulties there may be in framing with precision a definition of the extent of inebriety which falls short of and which constitutes drunkenness, there is a distinction between that crime on the one hand and merely being under the influence of liquor on the other hand, which is recognized in common speech, in ordinary experience, and in judicial decisions. Freeburg v. State, 92 Neb. 346. Standard Life & Accident Ins. Co. v. Jones, 94 Ala. 434. St. Louis, Iron Mountain & Southern Railway v. Waters, 105 Ark. 619. See Commonwealth v. Whitney, 11 Cush. 477, and Gowey v. Gamey, 191 Mass. 72. Moreover, a question is not incompetent merely because its answer may tend to criminate. That is a privilege which the person interrogated must claim. The plaintiff did not invoke protection on this ground as a ground for refusal to answer the interrogatories. Commonwealth v. Shaw, 4 Cush. 594: McCooe v. Dighton, Somerset & Swansea Street Railway, 173 Mass. 117.

Interrogatories 72 to 83 both inclusive were directed to the faithfulness of the plaintiff to his marriage vows and to his relations with other women. The measure of affection from his wife naturally would be tempered by undue attention on his part toward others of her sex while such an attitude of mind on his part would have a material effect upon the suffering likely to be endured by him through any intrusion by the defendant. While these were not so specific as to time as is desirable, they do not appear to be impertinent ór too vague. It is inferable from their collocation and context that they all refer to a time subsequent to the marriage.

Whether there were any children of the plaintiff’s marriage, and if so how many, was germane both upon the conduct of the plaintiff and his wife toward each other and their mutual obligations and the damages which the plaintiff might sustain through the wrong of the defendant. Therefore Interrogatory 5 should have been answered.

Numerous interrogatories were directed to the point whether the plaintiff ever had venereal disease. That subject manifestly may have direct effect upon the connubial relation. These interrogatories, however, were not so framed as to be competent. They were not confined in their scope to the existence, continuance or manifestation of any effects of the disease during the period of marriage, or to knowledge of any previous state of disease coming to the wife during marriage. If the time of such disease were wholly before the marriage, and it had been cured and no consequences were manifested during marriage and no knowledge of it came to the wife, then it had no bearing upon the issues here raised. There was no error in not ordering these interrogatories answered because they were not in proper form or sufficiently definite in character to elicit discovery of material facts.

One obvious effect of an answer to Interrogatory 67 was or might be to disclose the names of the plaintiff’s witnesses, and may not have been ordered answered on that ground.

Interrogatories 70 and 71 related to the contents of a public record respecting the time and place of which the interrogator apparently had knowledge.

A group of questions relates to the health of the plaintiff and attendance upon, him by physicians. These general inquiries, at least without something more specific in the record, do not appear to be relevant to any pending issues. Mere ill health of a spouse alone affords no just ground for waning of affections and as matter of common experience does not usually produce that result.

It is not necessary to examine the other interrogatories one by one. The refusal to order them answered reveals no error. They were either irrelevant, unnecessarily indefinite and vague, or sufficiently covered by other interrogatories ordered to be answered.

It is manifest that discovery of the facts sought by the interrogatories, which it is here held should have been answered, would have been likely to be of material assistance to the defendant in the preparation for trial. Therefore upon this record the exceptions must be sustained.

There is inserted in the record a ruling of law signed by the judge, with a statement that the plaintiff’s counsel excepted. There is no bill of exceptions or report covering that question of law. Hence plainly it is not before us and its presence in the record is immaterial. ’

Exceptions sustained.