Goldmann, Freund and Conford. Goldmann, S.j.a.d.
Defendant appeals from a judgment of voluntary dismissal without prejudice and without terms or conditions (except for the usual costs), entered in the Law Division on plaintiff's motion.
Plaintiff, as administratrix ad prosequendum , brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. , seeking damages for the accidental death of her decedent, an employee of defendant railroad. Defendant filed an answer denying negligence and setting up several defenses. It also served interrogatories, answered interrogatories propounded by plaintiff, attended the taking of oral depositions, and otherwise carried through all the preparation and discovery necessary to defend the action. The case proceeded in normal course; a pretrial conference was held and the matter eventually came on for trial. Plaintiff testified briefly as to decedent's age, his next of kin, and like matters. Her counsel then put one Drayton on the witness stand. Defendant at once objected to his testifying because his name had not been submitted in the answers to defendant's interrogatories. Excerpts from these interrogatories and plaintiff's answers thereto are here set out for convenience:
"(If plaintiff does not know the answer to any of the following questions personally, set forth the answer based on all information coming to the plaintiff through witnesses, investigation or otherwise, giving the source of the information and the name and address of the person from whom the information was obtained.)
1. Describe in detail and with particularity how the accident occurred.
ANSWER: Does not have sufficient information or knowledge at this time to answer on behalf of the decedent.
28. Give the names and addresses of all witnesses to the facts of the accident.
ANSWER: See Answer to No. 1.
29. Give the names and addresses of all witnesses to any of the other facts or issues involved in this litigation.
ANSWER: See Answer to No. 1."
It would appear that similar answers were given in response to some 32 questions. In fairness to plaintiff's present counsel, it should here be pointed out that these answers were prepared by her former attorney.
After extended argument Drayton was withdrawn from the stand. Plaintiff next called witness Freeman. Defendant objected to his testifying, urging the same ground as before. The court appeared to sustain the objection. Counsel for plaintiff pleaded that he could not proceed because of the deficiency in the answers to interrogatories, and moved for a mistrial. The motion was denied. After a recess plaintiff moved for a voluntary dismissal without prejudice. Defendant vigorously opposed the motion on the ground it had been put to substantial expense and inconvenience, calling attention to the fact that it had some 12 witnesses present who, as employees, had to be paid at least full-time salary. As an alternate proposition, defendant argued that if the motion were granted, it be only upon condition that all its expenses to date be paid. Although the court ...