479 P.2d 319 (Alaska 1970), 1043, Bachner v. Pearson

Docket Nº1043, 1081.
Citation479 P.2d 319
Opinion JudgeBONEY, Chief Justice.
Party NameJess G. BACHNER, d/b/a Fairbanks Aircraft Service, Appellant, v. Al PEARSON, Tom Martin, Leon Riley, and Stanislaw Poborski, Appellees. Al PEARSON, Leon Riley and Stanislaw Poborski, Appellants, v. Jess G. BACHNER, d/b/a Fairbanks Aircraft Service, Appellee.
AttorneyCharles E. Cole, Fairbanks, for Jess G. Bachner. Robert A. Parrish, Fairbanks, and James R. Blair, Fairbanks, of counsel, for Al Pearson and others.
Judge PanelBefore BONEY, C. J., DIMOND and RABINOWITZ, JJ., and LEWIS and STEWART, Superior Court Judges.
Case DateDecember 31, 1970
CourtSupreme Court of Alaska

Page 319

479 P.2d 319 (Alaska 1970)

Jess G. BACHNER, d/b/a Fairbanks Aircraft Service, Appellant,

v.

Al PEARSON, Tom Martin, Leon Riley, and Stanislaw Poborski,

Appellees.

Al PEARSON, Leon Riley and Stanislaw Poborski, Appellants,

v.

Jess G. BACHNER, d/b/a Fairbanks Aircraft Service, Appellee.

Nos. 1043, 1081.

Supreme Court of Alaska

December 31, 1970

Page 320

[Copyrighted Material Omitted]

Page 321

Charles E. Cole, Fairbanks, for Jess G. Bachner.

Robert A. Parrish, Fairbanks, and James R. Blair, Fairbanks, of counsel, for Al Pearson and others.

Before BONEY, C. J., DIMOND and RABINOWITZ, JJ., and LEWIS and STEWART, Superior Court Judges.

OPINION

BONEY, Chief Justice.

On November 15, 1962, a Piper Comanche aircraft crashed near Fairbanks, Alaska; the pilot of the aircraft, Alfred Pearson, and three passengers, Stanislaw Poborski, Leon Riley, and Tom Martin, were seriously injured and subsequently brought an action against Jess Bachner, d/b/a Fairbanks Aircraft Service, to recover damages for injuries sustained in the mishap. In their amended complaint, Pearson, Poborski, Riley and Martin alleged the crashed plane had been leased from Bachner by Pearson. It was also charged that

(D)ue to the negligence and gross negligence of the defendant and/or his breach of express and implied warranties to the plaintiffs upon which warranties plaintiffs and each of them relied, plaintiff, Al Pearson, became asphyxiated by the escape of carbon monoxide from the exhaust and heat exchanger system into the cabin of the airplane, thereby causing the airplane to crash and result in injuries to plaintiffs hereinafter alleged.

An extensive review of the events following the filing of the complaint is unnecessary here since this court has already had occasion to pass upon one aspect of the present case. Bachner v. Pearson, 432 P.2d 525 (Alaska 1967). It will be sufficient to note that on April 25, 1967, the superior court, Fourth Judicial District, Fairbanks, invoked pretrial discovery sanctions against Bachner, ordering:

That all facts relating to the muffler and exhaust system of Piper Comanche aircraft PA 24250, Ser. No. 24-1809, shall be and the same are taken as established for the purposes of this action in accordance with the claims of the plaintiffs.

Bachner petitioned for review of the order entered against him; in Bachner v. Pearson, supra, this court affirmed the action of the superior court as a proper exercise of that court's power under Civil Rule 37(b)(2)(a). 1

Following our ruling on review, the case was eventually set for trial commencing June 17, 1968. Prior to that date, plaintiffs, acting on the strength of the order establishing facts, filed a motion for summary judgment. Argument was heard and the plaintiffs' motion was denied; however, the court did pass upon the extent to which its order of April 25, 1967, would affect the trial, holding that the defendant's negligence was established and that

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such negligence was the cause of the accident. Despite strenuous argument by the plaintiffs' counsel, the court ruled that the plaintiffs would be required to produce further evidence in order to establish their claim under the warranty theory. 2 The issues of negligence and causation having thus been determined, the case proceeded to trial on the defendant's claims of contributory negligence and joint venture, on the plaintiffs' claim of gross negligence, and on the issue of damages.

At the close of the evidence at the trial, the defendant conceded that he had failed to establish the defense of joint venture. The court then ruled that the evidence of contributory negligence was insufficient to allow the issue to go to the jury. This ruling effectively resolved the liability of the defendant, leaving only the issue of damages to be submitted to the jury. 3 On July 23, 1968, the jury returned verdicts making substantial awards to each of the plaintiffs. Judgment was entered on the verdicts in favor of the plaintiffs on September 9, 1968. From this judgment both the plaintiffs and the defendant have appealed, assigning numerous errors to the proceedings below and urging necessity for a new trial. For the sake of convenience we will continue to refer to the parties as plaintiffs and defendant in accordance with their positions below. Our attention will first be turned to the appeal of the defendant, Bachner.

The defendant contends first that the superior court committed error in ruling that its sanction order of April 25, 1967, was conclusive of the issues of negligence and causation; similarly, it is contended it was error to send the case to trial with only the affirmative defenses and the damages at issue. The core of the defendant's argument is the assertion that the court's ruling, made just before the beginning of the trial, 4 vastly enlarged the scope of its previous sanction order and exceeded permissible limits. The defendant is precluded by our previous holding in Bachner v. Pearson, supra, from questioning the propriety of the original sanction imposed under Civil Rule 37(b)(2)(a). 5 The problem, then, is to decide what facts were established by the sanction order of April 25, 1967, and to determine whether those facts would be dispositive of all issues besides damages and the defendant's affirmative defenses.

It must be noted initially that the order of April 25, 1967, which established all facts relating to the defective condition

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of the aircraft's muffler and exhaust in accordance with the plaintiffs' claims, was worded broadly and contained no reference to the specific facts to be established. Under these circumstances, the scope of the order could most reasonably be determined by viewing the totality of the factual record in light of the policies underlying the pretrial discovery sanctions provided for in Civil Rule 37.

Alaska Civil Rule 37, under which the trial court's sanction was originally entered, is substantially identical to Rule 37 of the Federal Rules of Civil Procedure; in fact, the entire mechanism for pretrial discovery provided for in Alaska's Rules of Civil Procedure has been taken from the system established in the Federal Rules of Civil Procedure. 6 The importance of a thorough and effective system of pretrial discovery in the resolution of civil matters cannot be overemphasized. The following comment, directed at the crucial role played by discovery in the federal system of civil procedure, is applicable with equal force to the part played by discovery in Alaska:

In the theory of the federal rule-makers, discovery, with all its forms, is the make-or-break device of the whole system, for pleadings are required to be only generally informative, and clarifying motions are neither encouraged nor efficacious. Unless the discovery rules function sufficiently well, issues will often come to trial or pretrial sprawling and unformed; and many litigants will reach the courtroom ill-prepared. 7

Within the framework of the vital discovery mechanism, Rule 37 has been established to provide courts with an effective and flexible means of dealing with evasion of pretrial discovery procedures. 8 It is apparent, thus, that to unduly restrict a trial court's power to impose the sanctions provided for in Civil Rule 37 would only work to defeat the purposes of that rule, and might ultimately threaten to render unworkable our system of discovery.

With the exception of our previous decision in Bachner v. Pearson, supra, there are no Alaska cases ruling on the extent to which a court may establish facts pursuant to Civil Rule 37(b)(2)(a). However, federal decisions construing Federal Rules of Civil Procedure 37(b)(2)(i) would support the conclusion that the court's power to punish evasion of discovery orders by establishing facts in favor of a party is a broad one. Moreover, these cases have shown that when facts established pursuant to Rule 37(b)(2)(i) are dispositive of an issue, summary judgment may be granted to the opposing party. See McMullen v. Travelers' Insurance Co., 278 F.2d 834 (9th Cir. 1960); Reynolds v. United States, 192 F.2d 987 (3rd Cir. 1951). Yet the power of the court to punish a litigant by ruling in favor of the opposing party is not without limit. Any such attempt at punishment must remain within the confines of due process of law. In Hovey v. Elliott, 167 U.S. 409, 413-414, 17 S.Ct. 841, 843, 42 L.Ed. 215, 220 (1897). The United States Supreme Court in an opinion written by Mr. Justice White held:

The fundamental conception of a court of justice is condemnation only after hearing. To say that courts have inherent power to deny all right to defend an action, and to render decrees without any hearing whatever, is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends.

The Court's ruling in the Hovey case was clarified in the subsequent case of Hammond Packing Co. v. Arkansas, 212

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U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909). In Hammond the trial court, acting pursuant to statutory provisions, ordered the defendant to furnish a deposition. When the defendant refused, the court struck the defendant's answer and entered judgment in default in favor of the plaintiff. The United States Supreme Court in upholding the action taken by the trial court distinguished the case from Hovey v. Elliott in the following terms:

Hovey v. Elliott involved a denial of all right to defend as a mere punishment. This case presents a failure by the defendant to produce what we must assume was material evidence in its possession, and a resulting striking out of an answer and a default. The proceeding here taken may therefore find its sanction in the undoubted right of the lawmaking power to create a...

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