Feldner v. Anderson

1 Hosea's Rep. 441

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1907
• Status: Published

Opinion

Hosea, J.

Heard on demurrer to interrogatories.

The code provision for interrogatories' is discussed in Chapman v. Lee, 45 O. St., 356 (365-6), as a substitute for the old Bill of Discovery in Equity, and in Graham v. Telephone Co., 2 N. P. — N. S., 612, and the principle extended to “information sought by the interrogatory which will be material or relevant to the relief sought by the petition.”

The issue tendered by the petition is the joint negligence of defendants under circumstances where the information desired may well be presumed within the knowledge of defendants and not of plaintiff. Giving the code provision the liberal construction and administration required by its provisions, the court is of opinion that the interrogatories numbered i to 5, inclusive, may be said to be pertinent as touching the joint responsibility of defendants — and possibly others with them. For the same reason numbers 8, 10 and 12 may be passed as pertinent because relevant to this issue. But numbers 6, 7, 9, 11 and 31 quite as certainly are not pertinent in any aspect.

Clore, Dickerson & Clayton, for plaintiff. Moulinier, Bettman & Hunt, for defendants.

It may be objected that those sustained go to merely evidential facts; but negligence is never susceptible of direct proof, but is always an inference from facts shown— a legal inference from physical facts. A joint relation is of the same character in' respect of proof.

Demurrer sustained as to interrogatories numbered 6, 7, 9, 11 and 13; overruled as to those numbered 1, 2, 3, 4, 5, 8, 10 and 12.

Answers required in ten days from entry.