State ex rel. Martel v. Gallagher

PUDLOWSKI, Presiding Judge.

This is an original proceeding in which relator seeks an order of prohibition against respondent judge, to prevent him from enforcing an order amending and limiting one of relator’s interrogatories. We granted a preliminary order to which respondent filed his return. The cause was then argued and submitted. We make our preliminary order absolute.

The underlying action is based on negligence for the personal injuries relator sustained when the exterior steps that led to and from his residential apartment gave way and broke while he was in the process of descending the steps. The apartment complex consists of numerous buildings with steps that are made of precast concrete slabs and these same types of steps lead to and from the various apartments. These steps were apparently installed in substantially the same manner and at approximately the same time.

Relator, in an attempt to discover what, if any, notice the defendant had of the dangerous condition, propounded the following interrogatory:

9. Within five years prior to the accident described in plaintiffs petition, state whether or not Paragon and/or any of its agents, representatives or employees ever received any complaints regarding there being any cracks, deformities, splits, breaks or impairments in any of the steps located at 7 Trails West Apartments? If so, state:
*732(a) The date or dates when each such complaint was received:
(b) The identity of all persons who received and/or had knowledge of each such complaint being made:
(c) The identity of all records and documents which were made of each such complaint:
(d) The identity of the person who presently had custody of such records and documents: and if you will do so without a motion to produce, please attach a copy to these interrogatories.

Defendant refused to answer this interrogatory. Defendant stated the interrogatory “is overbroad, unlimited in scope, seeks information which is irrelevant and immaterial to any issue in the lawsuit, and is not reasonably calculated to lead to the discovery of admissible evidence.” The judge sustained defendant’s objection in part by holding that relator would be limited to discovering only what complaints were received with respect to the steps leading to or from his apartment, and by limiting discovery to two years.

We said in State ex rel. Anheuser v. Nolan, 692 S.W.2d 325, 328 (Mo.App.1985) that the purposes of discovery are to eliminate concealment and surprise, to aid the litigants in determining the facts prior to trial and to provide the litigants with access to proper information with which to develop their respective contentions and to present their respective sides of the issues framed by the pleadings.

In this action, relator contends respondent judge abused his discretion in that his ruling improperly limited relator’s discovery. Relator argues the interrogatory was reasonably calculated to lead to the discovery of admissible evidence of pri- or similar occurrences which could be admissible on the issue of notice of the existence of a dangerous condition. The trial court is vested with broad discretion in administering the rules of discovery and we will disturb these rulings only upon the showing of an abuse of discretion. Kawasaki Motors Corporation, U.S.A. v. Ryan, 777 S.W.2d 247, 251 (Mo.App.1989); State ex rel. Norfolk & Western Co. v. Dowd, 448 S.W.2d 1, 4 (Mo. banc 1969). When the trial court makes an order in discovery proceedings which is an abuse of discretion then prohibition is the proper remedy. Kawasaki, supra. Interrogatories may properly inquire into any matter which is reasonably calculated to lead to the discovery of admissible evidence. State ex rel. Litton Business Systems Inc. v. Bondurant, 523 S.W.2d 587 (Mo.App.1975).

It is the third factor of Anheuser which seems appropriate for our determination of this discovery matter, i.e., that the litigant be provided with access to proper information to develop his contention. We are also not convinced that the respondent’s position is valid. He contends that the interrogatory is overbroad and that the answers to the interrogatory will not lead to discovery of relevant admissible evidence.

In a most recent Supreme Court decision, Pierce v. Platte-Clay Electric Cooperative, Inc., 769 S.W.2d 769 (Mo. banc 1989), a farmer was operating his tractor through a field when the affixed spreader snagged a guy wire, which secured a utility pole. The wire snapped and as a result he was injured. One of the issues was whether or not evidence of similar accidents was admissible. In order to determine prior similar accidents, the plaintiff obtained from the defendant information for the past four years prior to the plaintiff’s accident, that there were nine “trouble tickets” concerning contact between farm machinery and guy wires. He was allowed to admit two of those notices to demonstrate the appellant’s notice that farm machinery had struck unmarked guy wires. The trial court had a pretrial conference, and at that time recognized the potential hazards of such evidence, but explicitly stated that the trouble tickets were relevant for the limited purpose of showing the defendant’s knowledge (emphasis added) that people were running into unmarked guy wires.

Our Supreme Court held evidence that the defendant had notice of similar accidents was properly admitted.

Before applying the principles of Pierce, we stress that the issue before us is *733a discovery question and not of admissibility. The respondent’s point in his brief that relator’s interrogatory was not reasonably calculated to lead to discovery is pure speculation. As mentioned above, the relator’s interrogatory asked whether there were any complaints (notice) about the steps within the past five years. In Pierce at 773, it was discovered that there were nine notices filed in the past four years and the plaintiff farmer was allowed to introduce two incidents to show that the defendant electric co-op had knowledge of the incidents.

We believe the realtor’s interrogatory is reasonable and would provide him with access to proper information and well within the purpose of discovery. We find the interrogatory in question not overbroad. It could lead to the discovery of admissible evidence.

Our preliminary order is made absolute.

SIMON, C.J., concurs. HAMILTON, J., dissents in separate opinion.