This is an original action under RCA 1.420.
On December 28, 1952, Billy J. Montgomery, a passenger in an automobile driven by petitioner, Lewis R. Maddox, was injured when the vehicle skidded on an icy street in Louisville and struck a utility pole. Montgomery filed a tort action against Maddox and another defendant, Peacock Coal Company. The liability of the latter is predicated upon its alleged negligence in permitting water from its premises to accumulate and freeze on the street where the accident occurred, making it slick and unsafe for travel.
Pursuant to CR 26.01 counsel for Montgomery and the co-defendant, Peacock Coal Company, proceeded on discovery to take the pre-trial deposition of Maddox. In the course of the examination, the following questions were asked:
"350. Q. Do you have public liability insurance?
"351. Q. Who is your insurance carrier?
"352. Q. What are the policy limits with respect to the maximum amount payable to any one person injured, or with respect to any one accident?'
Maddox's counsel objected to each question and instructed the witness not to answer. When the questions were certified to the Honorable Lawrence S. Grauman, before whom the action is pending in the Jefferson Circuit Court and who is the respondent herein, he ruled that the questions were within the scope of the examination and petitioner was ordered to answer them. Upon petitioner's refusal so to do, he found Maddox guilty of contempt under the authority of CR 37.03 but withheld execution of any punishment pending a final ruling of this Court.
The only issue raised in this action is: Must the defendant in an automobile negligence case in a pre-trial deposition for the purpose of discovery state whether or not he is insured and, if so, disclose the name of his insurance company and the limits of liability provided by his policy? Petitioner contends respondent in requiring him to answer these questions is proceeding erroneously within the jurisdiction of his court and great and irreparable injury will occur to him with the result that he will be without an adequate remedy by appeal or otherwise.
The disposition of this proceeding requires us to determine whether the inquiry is within the scope of examination contained in CR 26.02, which reads: "Unless otherwise ordered by the court as provided by Rule 30.02 or 30.04, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.'
These grounds are advanced as reasons why petitioner should not be compelled to respond to the questions: They are not relevant to the subject matter involved in the pending action; they do not relate to the claim or defense of any party to the action; and they are not "reasonably calculated to lead to the discovery of admissible evidence.'
Rule 26.02 is substantially identical with Rule 26(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. See 2 Barron & Holtzoff, Federal Practice and Procedure (Rules Edition), Section 641, page 26; 2 Moore's Federal Practice (Second Edition), Part V, Chapter 26, page 1001. This Rule constitutes an innovation in Kentucky practice and, because of this fact, we are without precedent to guide us in its application. The Rule extends the scope of the examination to a non-party witness as well as to an adverse party. Some of the main purposes of this particular Rule are to permit, prior to trial: (1) the narrowing of the issues by eliminating matters about which there is no real controversy, (2) the securing of information with respect to the existence of evidence which may be used at the trial, and (3) the obtention of evidence for use at the trial.
The principle governing feature of the Rule is that the matter about which a witness may be examined must be "relevant to the subject matter' of the action, whether it relates to the claim or defense of the examining party or that of any other party. Even though it would otherwise be incompetent and inadmissible, information may be elicited if it "appears reasonably calculated to lead to the discovery of admissible evidence.' The question of relevancy is more loosely construed upon pre-trial examination than at the trial, and the Rule requires only relevancy to the subject matter involved in the action. 2 Barron & Holtzoff, Section 647, pages 301 and 302.
The standard automobile liability policy evidences a contract which inures to the benefit of every person who may be negligently injured by the assured as completely as if such injured person had been named in the policy. Thus, if in the action filed by Montgomery a judgment should be recovered by him against Maddox and thereafter an execution on the judgment obtained should be returned, "No property found,' then, under the insolvency provision contained in such a policy, Montgomery could forthwith bring an ancillary proceeding or independent action against Maddox's insurance carrier, assuming of course he had indemnity insurance coverage on his automobile, and compel the insurance company to pay on his judgment up to the limit of Maddox's policy. See United States Fidelity & Guaranty Co. v. Hall, 237 Ky. 393, 35 S.W.2d 550.
When an accident involving an insured automobile occurs, the insurance company ordinarily does the investigation work, employs counsel for its assured, assumes all control over the litigation, and is, in fact, one of the real parties in interest. In the case of Toppass v. Perkins' Adm'x, 268 Ky. 186, 104 S.W.2d 423, 428, Toppass, acting through his insurer's agents, obtained a settlement of and release from damages for the death of a guest, killed while riding in a car negligently operated by him, by representing that he was unable to pay more than a small sum, although in truth he was at the time of the accident heavily insured. It was held the release should be vacated because it was procured by fraudulent representation under the circumstances. This Court there said ...