No. 12522 

IN THE 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, Special Administratrix 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) 7 igN 

.l-f7p " 7 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 

3istrictcourt of Oawson County entered summary judgment in favor 

of defendant Delaine A. Auble, Special Administratrix 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, killing both men. Becker, his wife, 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 signs warning motorists to reduce speed had been placed 

on Highway 200s before the east and west entrances to the intersection with the gravel service road. 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 all claims 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 driven by defendant's decedent, 

George C. Becker. 

2. That the truck driven by plaintiffs' decedent, Lloyd 

Xorast, did not stop before entering Highway No. 200s immediately 

prior to the collision described in plaintiffs' complaint. 

3. That Highway 200s at the 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 

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: 

(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 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 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 

shall be served with the request unless copies have already 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 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. 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 admission 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 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. 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 objectionable 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 intention of disputing it. This was contrary to the purpose 

of the rule, which was and is to eliminate from controversy 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 establish causal negligence on the part of Lloyd Morast. Section 

32-2172, R.C.M. 1947; Pachek v. Norton Concrete Company, 160 biont. 

5i6, 499 P.2d 766. Under Montana law, plaintiffs' decedent's consributory negligence 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 ust tire