MORAST v AUBLE
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No. 12522 I N T E SUPRENE C U T O THE STATE O MONTANA H OR F F 1974 E D R MORAST, L N LLOYD M R S LOA YN O AT and VICKY LORRAINE MORAST, by t h e i r n e x t f r i e n d , E D R MORAST, LOA P l a i n t i f f s and A p p e l l a n t s , DELAINE A. AUBLE, S p e c i a l A d m i n i s t r a t r i x of t h e E s t a t e of George Charles Becker, Deceased, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e Seventh J u d i c i a l D i s t r i c t , Honorable L. C. Gulbrandson, Judge p r e s i d i n g . Counsel of Record: For Appellants : Roland V. Colgrove argued, Miles C i t y , Montana For Respondent : Habedank, Cumming 6 Best, Sidney, Montana Jacque W. Best argued, Sidney, Montana Submitted: .l-f7p Filed. " Decided: 7 rf')f4 January 18, 1974 2) 7 igN ;4r. J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court. P l a i n t i f f s Eldora Morast ( w i f e ) , Lynn Lloyd Morast ( s o n ) , and Vicky L o r r a i n e Morast (daughter) brought t h i s a c t i o n t o r e - The zover damages a r i s i n g o u t of t h e d e a t h of Lloyd Morast. 3 i s t r i c t c o u r t of Oawson County e n t e r e d summary judgment i n f a v o r o f defendant Delaine A. Auble, S p e c i a l A d m i n i s t r a t r i x of t h e E s i a t e of George C h a r l e s Becker, deceased. O September 1 8 , 1966, a c o l l i s i o n occurred between a heavy n t r u c k d r i v e n by Lloyd Morast and a 1966 Buick sedan d r i v e n by George Becker, k i l l i n g b o t h men. Becker, h i s w i f e , and son were c r a v e l i n g e a s t on Montana Highway 200s ( f o r m e r l y 2 B S ) , a s p h a l t highway. a two l a n e Lloyd Morast was h a u l i n g g r a v e l on a s e r v i c e r o a d which i n t e r s e c t s Highway 200s approximately t e n m i l e s west of Glendive, Montana. Because of t r u c k s c r o s s i n g t h e r o a d , highway s i g n s warning m o t o r i s t s t o reduce speed had been placed on Highway 200s b e f o r e t h e e a s t and west e n t r a n c e s t o t h e i n t e r s e c t i o n w i t h t h e g r a v e l s e r v i c e road. The c o l l i s i o n o c c u r r e d n e a r he c e n t e r of t h e i n t e r s e c t i o n , t h e f r o n t end of t h e t r u c k s t r i k i n g b r o a d s i d e on t h e l e f t s i d e o f t h e Buick. The r e c o r d shows t h a t t h e i n s u r a n c e c a r r i e r of Lloyd ~ o r a s t ' s ei~iployermade a f u l l s e t t l e m e n t w i t h t h e s u r v i v o r s of George Beclcer f o r a l l c l a i m s a r i s i n g o u t of h i s d e a t h and f o r i n j u r i e s t h e y themselves s u s t a i n e d . Under Rule 36, M.R.Civ.P., defendant served on p l a i n t i f f s t h e f o l l o w i n g r e q u e s t f o r admissions d a t e d May 29, 1970: 1. That t h e t r u c k d r i v e n by p l a i n t i f f s ' d e c e d e n t , Lloyd Morast, s t r u c k t h e automobile d r i v e n by d e f e n d a n t ' s d e c e d e n t , George C. Becker. 2. That t h e t r u c k d r i v e n by p l a i n t i f f s ' d e c e d e n t , Lloyd X o r a s t , d i d n o t s t o p b e f o r e e n t e r i n g Highway No. 200s immediately p r i o r t o t h e c o l l i s i o n d e s c r i b e d i n p l a i n t i f f s ' complaint. 3. That Highway 200s a t t h e time and p l a c e of t h e c o l l i s i o n was a through highway. Plaintiffs filed these responses to defendant's request for admissions February 16, 1971: 1. "ANSWER: Plaintiff cannot truthfully admit or deny Request No. 1 as the operator of the truck, Lloyd Morast, was killed in the collision and plaintiff knows of no witnesses to the actual collision." 2. "ANSWER: Plaintiff cannot truthfully admit or deny Request No. 2 as the operator of the truck, Lloyd Morast, was killed in the collision and plaintiff knows of no witnesses to the actual collision." 3. "ANSWER: NO. I! Defendant filed a motion pursuant to Rule 36, M.R.Civ.P., to strike plaintiffs' response to the request for admissions and adjudge the facts admitted. The district court granted that motion, stating: "The Court notes that the response filed by plaintiff was filed approximately eight and one-half months after the original requests were filed. he Court also notes that at the pre-trial conference in this case on January 11, 1971, defense counsel noted that no response had been filed and that this was pointed out to plaintiff's attorney. If The record reveals that plaintiff's response was not filed until February 16, 1971." From the order of the district court striking the response and deeming facts admitted, and from the order granting summary judgment, plaintiffs appeal assigning two issues: ( ) Whether the district court erred in granting the motion 1 to strike the response and deem facts admitted. (2) Whether the district court erred in granting summary judgment to defendant. I, Concerning issue ( ) Rule 36, I4.R.Civ.P. provides: "a () REQUEST FOR ADMISSION. After commencement of an action a party may serve upon any other pa~ty, who has been served with process or who has appeared, a written request for the admission by the latter of the genuineness of any relevant documents described and exhibited with the request, or of the truth of any relevant matters of fact set forth in the request. Copies of the documents shall be served with the request unless copies have already been furnished. Each of the matters of which an admission is.requested shall be deemed admitted period designated in the request, unless, wit@% not less than 20 days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections Jn the ground that some or all of the requested adnissions are privileged or irrelevant or that the request is otherwise improper in wl~oleor in part, together with a notice of hearing the objections at the earliest uracticable time. If written objections to a part of the request are made, the remainder of the request shall be answered within the period designated in the request. A denial shall fairly meet the substance of the requested admission, and when good faith requires that party deny only a part or a qualification of a matter of which an admission is requested, he shall specify so much of it as is true and deny only the remainder. "b () EFFECT OF ADMISSION. Any admission made by a party pursuant to such request is for the purpose of he pending action only and neither constitutes an admission by him for any other purpose nor may be used against him in any other proceeding. I I Plaintiffs contend the quoted request for admissions by defendant dealt with "central issues1'and hence was improper, relying on Pickens v. Equitable Life Assurance Society of U.S., (C.A.5th 1969), 413 F.2d 1390, and other federal cases with similar holdings. The rule of Pickens, generally speaking, was that a litigant was permitted to ignore requests for admissions which concerned central issues and were in good faith deemed controverted. k 1970 amendment to Rule 36, F.R.Civ.P., clarified its provisions to preclude the application given it by Pickens. Although Rule 36, M.R.Civ.P., has not been amended since its en- actment in 1961 and remains practically identical to the pre-1970 Rule 36, F.R.Civ.P., of Pickens. this Court has never followed the rationale Daniels v. Paddock, 145 Mont. 207, 399 P.2d 740; Naegeli v. Daniels, 145 Mont. 323, 400 P.2d 896. The rationale of Pickens is criticized in 8 Wright & Miller, Federal Practice and Procedure: Civil 52256: "It is true that prior to 1970 a majority of the [federal] cases in point held that requests about controversial or disputable facts were improper, although other cases were to the contrary, and it seems fair to say that the cases refusing to allow these requests relied in large measure on authorities that did not support that proposition. On principle, however, this should not have been regarded as a valid ground for objection. To hold that a request was objectionable if it went to disputed facts was far too confining, since it often could not be determined, when a request was served, whether a particular fact was in truth disputed. Thus a party might avoid an answer, simply because a fact was disputable, though he no intention of disputing it. This was contrary to the purpose of the rule, which was and is to eliminate from controversy matters that will not be disputed." See also: 4A. ~oore's Federal Practice $36.04[8], for an analogous criticism. Plaintiffs also contend the district court erred in refusing to permit the late filing of their response, citing various federal cases in which late filing was allowed under Rule 36, F.R.Civ.P, However, in no case cited did a federal court find that a litigant may file a late response as a matter of right. In Montana, as under federal rules, the granting of a request for late filing of a response under Rule 36 is a matter resting within the discretion of the district court and will not be disturbed on appeal unless there is a showing of manifest abuse of that discretion. Daniels v. Paddock, supra. In light of the fact the instant case involves an eight and one-half month delay in filing with an intervening admonition during pretrial conference, plus the fact that the names of an eyewitness and an investigating highway patrolman were furnished to plaintiffs through answers to their interrogatories, we find no abuse of discretion by the district court in striking the response and deeming the requested facts admitted. Concerning issue (2)--whether the district court erred in granting summary judgment to defendant--8 Wright & Miller, Federal Practice and Procedure: Civil $ 2264, states: "Admissions obtained by use of Rule 36 may show that there is no genuine issue as to any material fact and justify the entry of summary judgment under Rule 56." The district court properly considered the admissions in granting summary judgment in favor of defendant. These facts, together with the record which includes on the scene photographs taken by the investigating highway patrolman, conclusively establish causal negligence on the part of Lloyd Morast. 32-2172, R.C.M. Section 1947; Pachek v. Norton Concrete Company, 160 biont. 5 i 6 , 499 P.2d 766. Under Montana law, plaintiffs' decedent's con- sributory negligence bars plaintiffs' recovery. This finding negates the materiality of any factual issue concerning defendant's decedent's negligence. The judgment is affirmed. J We Concur: Chief ust tire / ' Justice
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