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: January 18, 1974
Filed.
.l-f7p " 7 rf')f4
Decided: 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 -
zover damages a r i s i n g o u t of t h e d e a t h of Lloyd Morast. The
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 two l a n e
a s p h a l t highway. 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.
Concerning issue ( ) Rule 36, I4.R.Civ.P.
I, 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 genuine-
ness 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 al-
ready been furnished. Each of the matters of which an
admission is.requested shall be deemed admitted
unless, wit@% period designated in the request,
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 adnis-
sions 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 ad-
mission 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., this Court has never followed the rationale
of Pickens. 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 ob-
jectionable 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 in-
tention of disputing it. This was contrary to the purpose
of the rule, which was and is to eliminate from contro-
versy 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 estab-
lish causal negligence on the part of Lloyd Morast. Section
32-2172, R.C.M. 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.
/
' Justice
J
We Concur:
Chief ust tire