(concurring specially):
I concur in affirming the judgment of the trial court, but do so for the reason that the issue presented by this appeal has been previously determined by this Court.
In Gerard v. Young,1 the plaintiff sought to terminate a cafe lease where allegedly gambling was being conducted in violation of a condition of the lease. The defendant denied the allegation in his answer. Thereafter, in a deposition, he refused to admit the alleged gambling on the ground that it might incriminate him. This prompted the trial court to conclude that no factual issue remained and to grant summary judgment accordingly. On appeal, this Court affirmed, holding that a party in a civil action may not escape civil liability by claiming the privilege against incrimination, for if the privilege is claimed it invokes the inference that if the evidence had been-produced it would have been unfavorable.
As was further observed in Justice El-lett’s concurring opinion in Gerard v. Young:
There is no quarrel with the claim that the defendant cannot be made to incriminate himself, but in a civil case when he has a duty to state a fact, he does not state that fact by claiming privilege. In the case of Albert v. Chambers, 355 Mich. 111, 55 N.W.2d 752, the defendant did not want to answer under oath certain allegations of the complaint given under oath lest the answer incriminate her. The Michigan Supreme Court at page 755 of the North Western Reporter said:
That portion of the rule which deals with answers at law and in equity requires the defendants to answer the allegations of the declaration. However, those allegations may be either admitted or denied. If a material allegation in the declaration is not answered, the rule provides that it shall be taken as admitted.
To allow this defendant to remain in court under these circumstances would not be different from refusing to direct a verdict in a civil case where the plaintiff testified to facts showing the defendant had stolen hogs, and the defendant had refused to testify on the grounds that his answers would tend to incriminate him. Is there any reason to allow that case to go to the jury?
In protecting the constitutional rights of the defendant not to incriminate himself, we must not lose sight of the fact *1269that the plaintiff also has a constitutional right, and that is to have his case decided under the law, and the rules should not be bent to protect a man who refuses to make an issue simply because to do so would tend to incriminate him.
432 P.2d 347.
The same rationale applies in the instant case. The sole issue at trial was whether the defendant purloined the check after receiving full payment therefor. Had she been able to give a truthful answer to plaintiff’s requests for admission that she did not take the check, she of course could not have incriminated herself. On the other hand, having claimed the privilege against incrimination, the logical and justifiable inference to be drawn is that she did take the check. Therefore, the court did not abuse its discretion in striking her pleadings2 and entering judgment in favor of plaintiff by default.
. 20 Utah 2d 30, 432 P.2d 343 (1967).
. Pursuant to the sanctions provided by Rule 37(b)(2)(C), Utah Rules of Civil Procedure.