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Rule 169. Admission of Facts and of Genuineness of Documents (1950)

TEXT

At any time after the defendant has made appearance in the cause, or time therefor has elapsed, a party may deliver or cause to be delivered to any other party or his attorney of record a written request for the admission by such party of the genuineness of any relevant documents described in and exhibited with the request or of the truth of any relevant matters of fact set forth by the request. Copies of the documents shall be delivered with the request unless copies have already been furnished. Whenever a party is represented by an attorney of record, delivery of a request for admissions shall be made to his attorney unless delivery to the party himself is ordered by the court. The request for admissions must state that it is made under this rule and that each of the matters of which an admission is requested shall be deemed admitted unless a sworn statement is delivered to the party requesting the admissions or his attorney as provided in this rule. Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than ten days after delivery thereof or within such further time as the court may allow on motion and notice, the party to whom the request is directed delivers or causes to be delivered to the party requesting the admission or his attorney of record a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Any admission made by a party pursuant to such request is for the purpose of the pending action only and neither constitutes an admission by him for any other purpose nor may be used against him in any other proceeding. A true copy of a request for admissions or of a sworn statement in reply thereto, together with proof of the delivery thereof as provided in Rule 21a shall be filed promptly in the clerk's office by the party making such request or such sworn statement.

Amended by order of Oct. 12, 1949, eff. March 1, 1950: The third sentence, requiring delivery of the request for admissions to the adverse party's attorney, where he is represented by an attorney of record; the fourth sentence, requiring that the request state that it is made under this rule and the effect of failure to answer; and the last sentence, requiring the filing of copies in the clerk's office, have been added.

ADVISORY OPINIONS

Question: Are requests for admissions under Rule 169 applicable to a hearing on a plea of privilege and controverting affidavit?

Answer: Yes. Requests for admissions under Rule 169 may be made "at any time after defendant has made an appearance." Under Rule 85 one form of an appearance by the defendant is by an answer which "may consist of pleas of privilege," etc. (Cf. Rule 121) The purpose of the rule is to require admissions of parties as to uncontroverted facts and dispense with proof thereof, and it is applicable to every step in the proceedings after appearance.

5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).

Question: Do Rules 169 and 170 of the Texas Rules of Civil Procedure authorize a litigant to require admissions or denials of any relevant facts, even though such facts are not contained in any written documents concerning which discovery is sought?

Answer: "Under Rules 169 and 170 (c) any relevant matters of fact may be presented to the opposite party for admission or denial, even though such matters of fact are not related to any document."

5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).

(No. 23) Question: If a party sends to the other party by regular mail a request for admissions of fact under Rule 169, is it sufficient proof of delivery for the party mailing the request to testify that he mailed it and that the letter was not returned to him although more than ten days had elapsed since the request was mailed?

Answer: The testimony, if believed by the Judge, will make a prima facie showing of delivery. If it is rebutted, an issue of fact will be raised to be determined by the court as any other issue (See Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854 (1942), as to the effect of delivery by mail in general.) If delivery by mail is desired, the request should either be sent by registered mail and receipt thereof requested, or, if it be sent by regular mail, the opposite party should be requested to acknowledge receipt at the bottom of a duplicate copy of the request to avoid any controversy on the trial on the point, since the rule contemplates the actual receipt of the request by the opposite party. Interested witnesses should be avoided, as much as possible, because their testimony, even if undisputed, may not' be conclusive upon the judge.

5 Tex. B.J. 124 (1942) reprinted in 8 Tex. B.J. 9 (1945).

(No. 11) Question: When a party fails to make any response whatsoever to a proper request for admissions under Rule 169, can such party at the trial of the case deny any relevant matter of fact embodied in said request for admissions, or can said party require his opponent to make proof of any of said matters of fact?

Answer: No. Failure to deliver a sworn denial or a statement setting forth why the matters of fact cannot be admitted or denied, constitutes an admission of all relevant matters of fact embodied in the request for admissions. Such an admission is as binding as admissions made in any other manner in a. judicial proceeding, and the party making such an admission cannot thereafter upon the trial deny the admitted facts, except under circumstances that would release a litigant from any judicial admission.

At the trial it is not necessary to make further proof of the facts thus admitted.

5 Tex. B.J. 124 (1942) reprinted in 8 Tex. B.J. 9 (1945).

(No. 20a) Question: In case the answer to a request under Rule 169 of the Texas Rules of Civil Procedure respecting requests for admissions of, facts, etc., is unsworn, is the court justified in treating the matters of fact embraced in the request as admitted?

Answer: We think that the general rule is in the affirmative. But there, are some qualifications.

Since this proceeding is to be attended to outside of court, in order that the proponent of the matters of fact may take advantage of the admissions that he obtains, it is necessary that he introduce in evidence the answer (called the "statement" in the rule), and sometimes, both the answer and the request. It is just as though a witness were testifying, insofar as the admissibility and the value of the matter is concerned. If some of the matter is objectionable, and objection is made in proper manner, the court is duty bound to exclude it. If some of it is received without objection, but is valueless under the rules of evidence in force in the State, the court is justified in holding, in fact is duty bound to hold, that the situation is one of absence of evidence. So that our first qualification to the, general rule is that any admission obtained by the procedure must be offered in evidence and dealt with like any other evidence in a case that is tried. Of course, this would enjoin upon attorneys who employ this procedure the precaution to make their questions so simple and unobjectionable as to elicit admissions that may be useful to them under the rules of evidence. More will be said upon this subject in response to the next question.

Another qualification lies in the provisions of the rules for extension of time within which to make a proper sworn response to the request. In any ordinary case counsel for the party making the request will need to demonstrate to the judge that the admission has been obtained. In the present supposed case he will have to show that it has been obtained from the circumstance that the opposite party has not sworn to his answer. Or the judge, in ruling upon the case, will naturally divulge as a defect in the response that affidavit is not attached. Such a suggestion being made, the respondent ordinarily will seek to supply the defect. It may be that the court can allow him to amend. But certainly, within limits, a postponement in order to enable the respondent to file a sworn reply would be within the rules.

If motion for such a postponement is made within the ten day period that is prescribed by Rule 169, the judge may allow the postponement for good cause. If, on the other hand, the ten day period has expired, the movant must doubtless also show good cause for his failure to attach the affidavit. What the rules mean by "good cause" in these situations is advisably indefinite so as not unduly to restrict the court's discretion. Discussion of that subject below, in connection with the consideration of the subject of motion for new trial, will in large part be applicable here.

Another qualification would lie in considerations of waiver or estoppel. If the proponent of the request conducts the trial as though the answer were sworn to or, by his tactics, lulls the opponent into security in that regard, it is altogether likely that he will not be allowed to take advantage of the absence of affidavit.

So that, to the general rule that an unsworn answer in this proceeding is all admission, we think there would, be the qualifications that have been mentioned, namely, that the admission be admissible, if objected to, and "some evidence" whether objected to or not; that in a proper case the court would perhaps be able to allow amendment, or would be able to allow postponement in order that a correct answer might be filed; and that frequently the proponent would by his conduct, obviate objection to an unsworn answer.

Upon the above subjects, see Rule 169; Moore's Federal Practice, pp. 2655, 2660-2662; Koppel Indus. Car & Equip. Co. v. Portalis & Co., 118 Misc. 670, 195 N.Y.S. 24 (1922); Walsh v. Connecticut Mut. Lif Ins. Co. of Hartford, Conn., 26 F.Supp. 566 (E.D. N.Y. 1939); Rules169 and 5; Payton v. City of Big Spring, 157 S. W.2 d 975 (Tex. Civ. App.-Eastland 1941); Peterson v. Graham-Brown Shoe Co., 200 S.W. 2d 899 (Tex. Civ. App.-San Antonio 1918); Covel v. Smith, 8 So. 850 (Miss. 1891).

5 Tex. B.J. 124 (1942) reprinted in 8 Tex. B.J. 9 (1945).

(No. 20b) Question: Does Rule 169 contemplate interrogatories that involve "conclusions of fact or conclusions as to the whole matter at issue," such, for instance, as "Do you admit that the plaintiff performed the services required?" "Do you admit that you have not paid for the services?" "Do you admit that you owe plaintiff $56.50?"

Answer: While we cannot definitely pass upon the interrogatories given by way of illustration, because we do not know the issues of the case in mind, and while we would not want to enter into a consideration of the rules of evidence, we are inclined to the view that such interrogatories would be improper in any ordinary state of the issues because they are too broad, involve propositions of law, and, indeed, to some extent, attempt to prove by a witness what a jury or the judge is supposed to decide.

We, however, should observe, that, respecting documents, a question that implies principles of law, would in that particular connection doubtless be proper, because the rule approves it. We refer to inquiry as to the "genuineness" of a particular document.

Upon the above subjects, see same references.

5 Tex. B.J. 125 (1942) reprinted in 8 Tex. B.J. 10 (1945).

(No. 20c) Question: Assume, in case of unsworn answers to questions under Rule 169, that plaintiff's attorney introduces the questions and answers and asks for judgment; that defendant's attorney, ignorant of the rules, contends that his answers prevent judgment and resists the demand; that the court gives judgment for the plaintiff because affidavit has not been made to the answers; that defendant's attorney is not aware of what has happened except that he knows that judgment has gone against his client; and that afterwards defendant employs other counsel who file motion for new trial, please say whether the trial court should grant a new trial in these circumstances.

Answer: Since the purpose of this Subcommittee is confined to interpreting the Rules, we shall not attempt to go into the general principles of new trial. However, there are some features of the subject that have hearing upon the innovations and changes in the Rules; and these we would treat as best we may.

Material error being ground for new trial, if the merits were probably not reached in your supposed case, and if the judgment depends upon admissions which are valueless under the rules of evidence, a new trial should be granted.

The foremost object of this procedure is to obtain conscious admissions of uncontroverted matter. Plain, simple questions should be put that may be plainly and simply answered without encountering the danger of answering half truths or two or more questions in one, of giving answers that involve points of law, or, in general, of giving answers that are not intended. Ordinarily the questions should be few in number and, of course, they should not be confusing.

Thus restricted, the procedure under the rule can be very useful. Dates, particular happenings, questions like those that may be properly asked of a witness on the stand, are feasible subjects of inquiry, provided, of course, there is a probability that the answers are beyond controversy.

To proceed otherwise not only runs the proponent into the danger of having his matter rejected by the court because the purpose of the rule has been infringed but also because, the rules of evidence being applicable as already observed, the matter may offend such rules. A practical consideration should be stressed also. If the proponent asks improper questions, he will run the risk of obtaining no answers, evasive answers, qualified answers, half answers, or explanations on account of absence of answers - any of which results may thwart his purpose and yet be upheld by the court because of the form of his questions; whereas, if he pursues the proper course and, notwithstanding that, procures no answers, or useless answers, he may in reason expect to obtain from the court the imposition of costs or even attorneys' fees against the respondent for his failure to cooperate.

Then there are discretionary new trials.

Doubtless the court's discretion has been liberalized by the Rules since their object is justice on the merits and since procedure, by them, is designed to be a means instead of an end and an aid instead of an obstruction.

In the present situation there are some features which, according to the state of the record, may or may not be material in behalf of a discretionary new trial. If the case were pending when the Rules came into effect, considerations of substantial justice should control the court in his action on the motion. If it were not pending, and if the merits were probably with movant, these considerations should have weight, if present: that the questions were not of a type that we have described as appropriate to the Rule 169; that the defendant's attorney was misled by conduct of opposing counselor of the judge; perhaps that the procedure lately came info effect; that the misstep was owing to some humanly excusable cause; or even that it was not the result of intentional disobedience of the rules.

Upon the above subjects, see Pridgen v. McLean, 12 Tex. 420 (1854); Evans v. Pigg, 28 Tex. 587 (1866); Rules 320, 321; Koppel Indus. Car & Equip. Co. v. Portalis & Co., 118 Misc. 670, 195 N.Y.S. 24 (1922); Haebler v. Crawford, 232 A.D. 122, 126, 249 N.Y.S. 184, 189 (1931); Moore's Federal Practice, 2653-2655, 2658 ; Hughes' Federal Practice, 212-213 ; Walsh v. Connecticut Mut. Lif Ins. Co. of Hartford, Conn., 26 F.Supp. 566 (E.D. N.Y. 1939); Rule 170; Banca Nazionale Di Credito v. Equitable Trust Co. of New York, 221 A.D. 555, 224 N.Y.S. 617 (1927); 20 C. J. S. 332; Rules 1, 434, 503; Royal Ins. Co. v. Texas & Gulf Ry. Co., 102 Tex. 306, 116 S.W. 46 (1909); Chambers v. Fisk, 15 Tex. 335 (1855); and Craddock v. Sunshine Bus Lines, 134 Tex. 338, 133 S.W.2d 124 (1939).

5 Tex. B.J. 125 (1942) reprinted in 8 Tex. B.J. 11 (1945).

(No. 45) Question: Would a request for an admission of fact under Rule 169 be a waiver of the provisions of R. S. Art. 3716?

Answer: In putting this question, the correspondent adds that there is a line of cases holding that if the opposite party is called to testify or his deposition is taken this will be a waiver of the testimony excluded by the provisions of Art. 3716, R. S.

While the subcommittee has not diligently investigated the proposition of statutory construction which is thus stated, it assumes for the purpose of interpreting Rule 169 that it is correct.

The statute excludes adversary testimony of a transaction with or a statement by deceased unless the witness is "called to testify thereto by the opposite party."

While the Supreme Court in Grieb v. Stahl, 101 Tex. 306 (1908), evidently doubted that a witness was "called," within the intention of this statute, where merely his deposition, developing the transaction or statement in question, was taken, it afterwards, in Allen v. Pollard, 109 Tex. 536, 212 S.W. 468 (1919), definitely held that in such a case he was "called to testify" in that his testimony was made available and only needed introduction in evidence to be evidence.

As has been heretofore said in an opinion, the synopsis of which appears as No. 20a in 5 Tex. B.J. 124, admissions obtained under Rule 169 are not evidence until introduced and received as evidence. Still they are available as evidence. The opposite party has been "called," in the sense of "caused" and has been caused to "testify" in the sense of making an extra-judicial statement which may be introduced in evidence.

Consequently the subcommittee is of the opinion that if the taking of a deposition developing a matter within the bar of the statute serves to waive the bar, the obtaining of such matter by means of Rule 169 has that effect also.

5 Tex. B.J. 237 (1942) reprinted in 8 Tex. B.J. 19 (1945).

(No. 47-a) Question: Should the request for admissions under Rule 169 be in the form of a question?

Answer: The request may be submitted either in the form of a statement or a question. The essential thing is that the fact which the party wants admitted should be stated with clearness. See Official Form 25, Federal Rules of Procedure, and Walsh v. Connecticut Mut. Lif Ins. Co. of Hartford, Conn., 26 F.Supp. 566 (E.D. N.Y. 1939).

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 22 (1945).

(No. 47-b) Question: Is it possible to construe Rule 170 to mean that a court could not tax costs for failure to comply with Rule 169 unless it should appear that party had also failed to comply with Rule 167?

Answer: We think it sufficiently clear from Rule 170 that the power of the court to tax costs for failure to comply with Rule 169 is not dependent upon a finding that the party has also failed to comply with Rule 167. Federal Rule 37-b and c is the source of Rule 170. The meaning of Rule 170 would be clearer if the last two sentences of subdivision c were written in separate paragraphs as was Federal Rule 37 -b and c. This matter will be reported for clarification if deemed necessary.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 22 (1945).

(No. 59) Question: Under the Rule 169 of the Rules of Civil Procedure, assume that a party is delivered a proper request for admissions of fact and does not reply to the same within the time stipulated, and assume further that five days prior to the time that the party has to make his reply his attorney files a motion in the court papers for a ten day extension of time to file a reply and no other notice is given to the adverse party of the filing of such motion, and no action is taken on the motion at the time, and no other motion for an extension of time is made, would the court at the trial of the case over three months thereafter have any authority to permit such party to file a reply to the request for admissions?

Answer: We consider that the court would, under the circumstances at hand, have authority, in the exercise of its discretion, to permit the reply to be filed unless the motion were so worded as not to contemplate an extension at so late a time, and that it would likewise, of course, have the discretion to refuse such permission. Rule 169 gives such authority on motion and notice. Rule 21 requires the clerk on the filing of the motion to make the proper entries concerning it on the motion docket, and renders such filing and entry sufficient notice, since the motion is one in a pending suit. As these entries are to be made by the clerk, any failure to make them is the fault of the clerk. In the fact situation which is supposed in the question, the party demanding the admission has a clear remedy. It is to be expected that within the ten days allowed by Rule 169 he will have come into possession of a copy either of the sworn statement or else of the motion to enlarge the time for filing the sworn statement, because Rule 72 requires the transmission of a copy of any paper of that kind and Rule 73 puts the party in default of that duty in danger of having to pay for a certified copy. If at the end of the ten days' time the party demanding the admission receives no copy whatever, he very naturally should resort to the papers to ascertain whether any paper has been filed. If, instead of a sworn statement as required by Rule 169, he encounters a motion for enlargement of time, as is permitted by such. Rule, he may thereupon request the court to hear the motion, and he may persist in his request until it is heard. Since the efficacy of this whole proceeding is largely dependent upon its completion before the trial commences, it is, of course, to be hoped that the demandant would thus protect himself. The discretion of the court in such a case should be exercised to the end of requiring as prompt a filing of the sworn statement as the circumstances may justify.

It should be added that, in the event respondent's motion is ineffective on account of its wording, a second though more onerous motion could be urged and granted under Rule 169 and subdivision (b) of Rule 5.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 25 (1945).

Question: Under Rule 169 is (1) the filing of a plea of privilege an appearance in the cause; and (2) if after filing a plea of privilege a request for admissions is made under Rule 169, will compliance therewith constitute a waiver of the plea of privilege?

Answer: Answer: (1) It is our opinion that the filing of the plea of privilege is an appearance, in the cause. It is a form of answer. An answer, or any part, thereof, filed in the cause constitutes an appearance. Atchison, Topeka & Santa Fe Ry. Co. v. Stevens, 109 Tex. 262, 206 S.W. 921 (1918); Richardson v. Wells, 3 Tex. 223 (1848); Rule, 85. See 5 Tex. B.J. 15.

(2) Under. Rule 169, "after defendant has made an appearance in the cause," requests for admissions may be made by him. If the request for admissions relates to the plea of privilege, it is undoubtedly an appropriate procedure and would constitute no waiver of the plea. Texas Land & Dev. Co. v. Myers, 239 S.W. 303 (Tex. Civ. App.-San Antonio 1922); Howe Grain & Mercantile Co. v. Taylor, 147 S.W. 656 (Tex. Civ. App.-San Antonio 1912); Howeth v. Clark, 19 S.W. 433, 4 Willson 549 (Tex. Ct. App. 1892). See Op. No. 20a, 5 Tex. B.J. 124. If the request relates to the merits, and is made by plaintiff, the defendant nevertheless is required by Rule 169 to comply with the request and therefore he does not waive his plea of privilege by such mandatory compliance; and the admissions therein may be availed of whenever the case is tried on the merits. See Harkness v. Hyde, 98 U.S. 476 (1878).

8 Tex. B.J. 47 (1945).

(No. 131) Question: Where a request is duly made under Rule 169, for the admission of the truth of different facts, and where the party of whom the request is made admits one of the facts and under oath denies another, may the latter upon the introduction in evidence of his admission introduce his own denial?

Answer: By way of explaining what we conceive to be the application of the question, we shall employ an illustration: In a collision case, request is made of plaintiff to admit that the cars came together at a street crossing and that, at the time, plaintiff was not sounding his horn. Plaintiff admits the first fact and under oath denies the second. If defendant introduces the admission, may plaintiff introduce the denial? We think not. This is not a deposition. Either party is allowed to use a deposition because Rule 211 says so. In view of this and of the evident danger that would arise in the present proceeding if a party's self-serving responses could be used by him as evidence, we believe that the rule under investigation would have been differently worded if such a result had been intended.

In expressing these views, we desire to exclude from consideration cases in which by reason of adroit wording of the request, it is necessary to consider a denial in one response in order to bring out the full or true meaning of another response. There may, of course, be other exceptions. For this reason we desire to confine our views to clear situations such as we have contemplated in the example which we have used in the previous paragraph.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).