Top Value Enterprises, Inc. v. Borrelli

216 N.E.2d 874, 350 Mass. 722, 1966 Mass. LEXIS 813

• Court: Massachusetts Supreme Judicial Court
• Decided: May 12, 1966
• Status: Published

Opinion

Wilkins, C.J.

This is a bill for discovery seeking the production of a vacuum cleaner for examination. The defendants, husband and wife, are plaintiffs in a tort action for damages arising out of an injury to the female plaintiff caused by an allegedly defective vacuum cleaner received from the defendant there (the plaintiff here) in exchange for trading stamps. The bill was dismissed by a final decree, and the plaintiff appealed. There are no findings, and nothing shows the ground of the trial judge’s action.

This case arose before the effective date of Bule 15 of the General Buies (effective April 1, 1966). The interrogatories statute, G. L. (Ter. Ed.) c. 231, § 61, extends only to the discovery of facts and documents and does not apply to the production and examination of ordinary chattels. Owens-Illinois Glass Co. v. Bresnahan, 322 Mass. 629, 633. The court below had jurisdiction to grant discovery of the vacuum cleaner, but this was entirely in its sound discretion. MacPherson v. Boston Edison Co. 336 Mass. 94,103-104. In so far as the Owens-Illinois Glass Co. case discussed Reynolds v. Burgess Sulphite Fibre Co. 71 N. H. 332, 340, this court, contrary to the plaintiff’s contention, did not make a suggestion of its own that the examination of the chattel was matter of right, rather than of discretion. See Cline v. Cline, 329 Mass. 649, 652-653.

Decree affirmed.