TOP VALUE ENTERPRISES, INC. vs. MARGARET BORRELLI & another.

TOP VALUE ENTERPRISES, INC. vs. MARGARET BORRELLI & another.

350 Mass. 722

May 4, 1966 - May 12, 1966

Suffolk County

Present: WILKINS, C.J., SPALDING, WHITTEMORE, KIRK, & REARDON, JJ.

G. L. c. 231, Section 61, providing for interrogatories, does not apply to the production and examination of ordinary chattels.

In a suit in equity commenced in 1965 by the defendant against the plaintiffs in an action of tort based on an allegedly defective vacuum cleaner, the equity court had jurisdiction to grant the relief sought by the bill of ordering production of the vacuum cleaner for examination, but it was in the discretion of the court whether or not to grant such relief.

Page 723

BILL IN EQUITY filed in the Superior Court on October 28, 1965.

The suit was heard by Cahill, J.

The case was submitted on briefs.

Robert A. Curley & Alfred L. Morin for the plaintiff.

Morris Michelson & Alan B. Brams for the defendants.

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 Rule 15 of the General Rules (effective April 1, 1966). The interrogatories statute, G. L. (Ter. Ed.) c. 231, Section 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.