No. 12522 INTHE SUPRENE COURT OF THE STATE OF MONTANA 1974

ELDORA MORAST, LYNN LLOYD MORAST and VICKY LORRAINE MORAST, by their next friend, ELDORA MORAST, Plaintiffs and Appellants,

DELAINE A. AUBLE, SpecialAdministratrix of the Estate of George Charles Becker, Deceased, Defendant and Respondent.

Appeal from: District Court of the Seventh Judicial District, Honorable L. C. Gulbrandson, Judge presiding. Counsel of Record: For Appellants: Roland V. Colgrove argued, Miles City, Montana For Respondent: Habedank, Cumming 6 Best, Sidney, Montana Jacque W. Best argued, Sidney, Montana

Submitted: January 18, 1974 Decided: 2)

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### rf')f4 Filed.;4r. Justice Gene 

### B. Daly delivered the Opinion of the Court.

Plaintiffs Eldora Morast (wife), Lynn Lloyd Morast (son), and Vicky Lorraine Morast (daughter) brought this action to rezover damages arising out of the death of Lloyd Morast. The 3istrictcourtof Oawson County entered summary judgment in favor of defendant Delaine A. Auble, SpecialAdministratrix of the Esiate of George Charles Becker, deceased. On September 18, 1966, a collision occurred between a heavy truck driven by Lloyd Morast and a 1966 Buick sedan driven by George Becker, killingboth men. Becker, hiswife, and son were craveling east on Montana Highway 200s (formerly 2BS), a two lane asphalt highway. Lloyd Morast was hauling gravel on a service road which intersects Highway 200s approximately ten miles west of Glendive, Montana. Because of trucks crossing the road, highway signswarning motorists toreduce speed had been placed

on Highway 200s before the east and west entrances to the intersectionwith the gravel serviceroad. The collision occurred near he center of the intersection, the front end of the truck striking broadside on the left side of the Buick. The record shows that the insurance carrier of Lloyd ~orast's ei~iployer made a full settlement with the survivors of George Beclcer for allclaims arising out of his death and for injuries they themselves sustained. Under Rule 36, M.R.Civ.P., defendant served on plaintiffs the following request for admissions dated May 29, 1970: 1. That the truck driven by plaintiffs' decedent, Lloyd Morast, struck the automobile drivenby defendant's decedent, George C. Becker. 2. That the truck drivenby plaintiffs' decedent, Lloyd Xorast, did not stopbefore entering Highway No. 200s immediately prior to the collision described inplaintiffs' complaint. 3. That Highway 200s atthe time and place of the collision

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 ofnowitnesses to the actual collision." 

### 2. "ANSWER: Plaintiff cannot truthfully admit or deny Request No. 

### 2as the operator of the truck, Lloyd Morast,

was killed in the collision and plaintiff knows ofno 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 approximatelyeight and one-halfmonths after the original requestswere filed. 

### he Court also notes that at the pre-trial conference in this case on January 11, 1971,defense counsel noted that no responsehad been filed and that this was pointed out to plaintiff's attorney.

If



### The record reveals that plaintiff's responsewas 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: (1) 

### Whether the district court erred in granting the motion to strike the response and deem facts admitted. 

### (2) Whether the district court erred in granting summary judgment to defendant. Concerning issue (I), Rule 36,I4.R.Civ.P. provides: "(a) REQUEST FORADMISSION. After commencementof an action a party may serveupon any other pa~ty, who has been servedwith process or who has appeared, awritten 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 shallbe servedwith the request unless copies have already been furnished. Each of the matters ofwhich anadmission is.requested shallbe 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 courtmay allow on motion and notice, the party to whom the request is directed servesupon the party requesting the admission either 

### (1) a sworn statement denying specifically the matters ofwhich an admission is requested or setting forth in detail the reasonswhy 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~ole or in part, together with a notice of hearing the objections at the earliest uracticable time. Ifwritten objections to a part of the request aremade, the remainder of the request shall be answeredwithin the period designated in the request. A denial shall fairlymeet the substance of the requested admission,and when good faith requires that party deny only a part or a qualification of a matter ofwhich 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.II Plaintiffs contend the quoted request for admissions by defendant dealt with "central issues1' and hencewas improper, relying on Pickens

### v. Equitable Life Assurance Society of 

### U.S.,

(C.A.5th 1969), 

### 413 F.2d 1390,and other federal caseswith similar holdings. The rule of Pickens,generally speaking,was that a litigantwas 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 enactment 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. Danielsv. 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 factswere improper, although other caseswere 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 shouldnothavebeen regarded as a valid ground for objection. To hold that a requestwas objectionable if it went to disputed factswas far too confining, since it often could notbe determined,when a requestwas served, whether a particular factwas in truth disputed. Thus a party might avoid an answer, simplybecause a factwas disputable, though heno intention of disputing it. Thiswas contrary to the purpose of the rule, whichwas and is to eliminate from controversy matters that will not be disputed." See also: 4A.~oore'sFederal 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 filingwas 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 federalrules, the granting of a request for late filing of

a responseunder Rule 

### 36 is a matter resting within the discretion of the district court and willnot be disturbed on appeal unless there is a showing ofmanifest abuse of that discretion. Danielsv. Paddock, supra. In light of the fact the instant case involves an eight and one-halfmonth delay in filingwith an intervening admonition during pretrial conference,plus the fact that the names of an eyewitness and an investigating highway patrolmanwere furnished to plaintiffs through answers to their interrogatories,we find

no abuse of discretionby 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 Practiceand Procedure: Civil $ 

### 2264, states: "Admissions obtained by use ofRule 36may show that there isno 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,

### togetherwith the record which includes on the scene photographs takenby the investigating highway patrolman, conclusively establish causal negligence on the part of Lloyd Morast. Section 32-2172,R.C.M. 1947;Pachekv. Norton Concrete Company, 160biont. 5i6, 

### 499 P.2d 

### 766. Under Montana law,plaintiffs' decedent's consributorynegligence bars plaintiffs' recovery. This finding negates the materiality of any factual issue concerning defendant's decedent's negligence. The judgment is affirmed.

J /' 

### Justice

We 

### Concur:

Chief

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