Rustin v. Cook

• Decision Date: 25 October 1984
• Docket Number: CA-CIV,No. 2,2
• Citation: 143 Ariz. 486,694 P.2d 316
• Parties: Dora Lee RUSTIN, Plaintiff/Appellee, v. Ellis Harrison COOK, Defendant/Appellant. 5092.
• Court: Arizona Court of Appeals

Page 316

694 P.2d 316

143 Ariz. 486

Dora Lee RUSTIN, Plaintiff/Appellee, v. Ellis Harrison COOK, Defendant/Appellant.

No. 2 CA-CIV 5092.

Court of Appeals of Arizona,

Division 2.

Oct. 25, 1984.

Review Denied Dec. 18, 1984.

Rubin Salter, Jr., Tucson, for plaintiff/appellee

Sorenson, Moore & Julian by John S. Schaper, Phoenix, for defendant/appellant.

OPINION

BIRDSALL, Chief Judge.

The plaintiff/appellee, Dora Lee Rustin, was injured on February 10, 1979, when the automobile she was driving was struck from behind by one driven by the defendant/appellant, Ellis Harrison Cook. At the time, the appellee's vehicle was stopped in obedience to a traffic signal. The appellant had been drinking from 6 p.m. to 10 p.m. and was intoxicated. The collision occurred shortly after 10 p.m.

The appellee's principal injury was a strained cervical and lumbosacral spine. Her injuries caused her to lose some time at work. She was a laborer at the Duval Mine. The jury verdicts were for $32,488.29 compensatory and $52,387.49 punitive damages.

We must decide the following questions on appeal:

1) Does the appellee's failure to disclose some discoverable matters prior to trial require a new trial?

2) Was certain disability pay received by the appellee a collateral source?

3) Should the damage awards be limited to the amounts contained in the prayer of the complaint?

4) Is the punitive damage award supported by the evidence?

We answer all these questions in the appellee's favor and affirm.

Disclosure

In responding to discovery requests, the appellee did not disclose four accidents which were subsequently found at the time of trial to have been documented in her medical and personnel records:

First, she was involved in an automobile accident on August 1968, for which she had been treated by her personal physician. Second, she had made an industrial claim in connection with a back injury sustained on January 26, 1979, approximately two weeks prior to the accident involving the defendant. Third, on May 20, 1981, she hurt herself while moving barrels at work, and was off from that date until June 8, 1981. Fourth, she had fallen at work on July 17, 1981, and apparently injured her back. She was off work for this condition from July 20, 1981, to December 14, 1981, when she was laid off due to a reduction in force.

All of this information which came to light during trial had not been disclosed by the appellee during discovery proceedings, although her deposition had been taken, uniform interrogatories answered, and two sets of supplemental interrogatories submitted requesting all relevant medical data.

The appellant argues that if those accidents had been disclosed, he would have been able to (1) depose the physician who examined the appellee on behalf of her employer, Duval Mines, to determine the nature and extent of any physical impairments which he found relating to her industrial injuries, (2) determine the nature and extent of any medical or compensation benefits which the appellee received as a result of her industrial injuries, and (3) determine whether the disability claimed by the appellee as the result of the automobile accident was in fact due to previous accidents and injuries, or the subsequent accidents and injuries. He contends such information was critical because of the limited issues tried in this case involving only the appellee's claim for damages.

When these matters came to light, the appellant cross-examined the appellee concerning each and impeached her with the previous negative discovery answers. He also questioned her medical witnesses.

In response, the appellee lamely suggests that the interrogatory asked only if she had suffered any prior or subsequent injuries in any accidents. She then claims to have answered truthfully as to the industrial accidents because she was not "injured." She claims to have forgotten the 1968 auto accident. Although her faulty memory concerning the 1968 accident may be understandably forgiven, her contention that she was not injured in the industrial accidents is unacceptable. She made an industrial claim for a January 1979 injury and she reported the two subsequent accidents to her physician. Neither can we accept her argument that the appellant could have discovered these incidents by pursuing other means of discovery. The appellant had a right to rely upon her answers to the interrogatories and the answers should have disclosed the accidents.

The purpose of discovery procedure under our Rules of Civil Procedure is to avoid the element of surprise and prevent the trial of a lawsuit from being a "guessing game."

Watts v. Superior Court, 87 Ariz. 1, 5, 347 P.2d 565, 567 (1959). And see Ries v. McComb, 25 Ariz.App. 554, 545 P.2d 65 (1976) (failure to disclose witness and exhibit, new trial granted because of surprise).

This issue was not raised until the appellant's Rule 59 motion for new trial, which the trial court denied. The ground argued in that motion was that this was material evidence, newly discovered, which with reasonable diligence could not have been discovered and produced at trial. Rule 59(a)(4), Rules of Civil Procedure, 16 A.R.S. A motion for new trial based upon that ground calls for the exercise of discretion on the part of the trial court. Sabin v. Rauch, 75 Ariz. 275, 255 P.2d 206 (1953). To secure a new trial upon the ground of newly discovered evidence, it must appear that the evidence is such that it would probably change the result. Sabin v. Rauch, id.

On appeal the appellant urges a different ground. Using the same inaccurate answers to the interrogatories, he now claims that a new trial should have been ordered because he was unable to prepare properly for trial, relying on Rule 59(a)(2), misconduct of the prevailing party. This ground may not now be considered on appeal. Sun Lodge, Inc. v. Ramada Development Co., 124 Ariz. 540, 606 P.2d 30 (App.1979); Hays v. Richardson, 95 Ariz. 64, 386 P.2d 791 (1963), modified on reh'g, 95 Ariz. 263, 389 P.2d 260 (1964).

Assuming, arguendo, that we may consider the issue as one involving misconduct or surprise, Rule 59(a)(3), we would still be bound to affirm the trial court's order denying a new trial. Even though we believe that the answers to the interrogatories were evasive, incomplete, and inaccurate, we believe that the trial court should have been given some opportunity when the problem first appeared to attempt to rectify the error. There were other appropriate sanctions which could have been considered. The Advisory Committee Note to Federal Rule 26(e) says that "[t]he duty will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the trial court, including exclusion of evidence, continuance, or other action, as the court may deem appropriate." The cases appear to be almost uniform in holding that the trial court has broad discretion concerning sanctions imposed for failure to supplement an answer or making an incorrect response. Sanctions imposed include excluding testimony, Barnes v. St. Francis Hospital, Inc., 211 Kan. 315, 507 P.2d 288 (1973) and continuance, Young v. Saroukos, 6 Storey 44, 56 Del. 44, 189 A.2d 437 (1963). We also believe the trial court could properly have considered a motion for mistrial if it had been made when the problem first surfaced. Although granting a new trial has been approved, see Voegeli v. Lewis, 568 F.2d 89 (8th Cir.1977); Aulgur v. Zylich, 390 S.W.2d 553 (Mo.App.1965); Abbatemarco v. Colton, 31 N.J.Super. 181, 106 A.2d 12 (1954), such a sanction is clearly within the broad discretion of the trial court. It does not appear that this discretion was abused in the instant case. We believe that the trial court could very properly have considered the fact that no timely objection was made and it was not until after the unfavorable verdicts that the trial court was asked to act. Miller v. Palmer, 143 Ariz. 84, 691 P.2d 1112 (App.1984). See also Wright & Miller, Federal Practice and Procedure: Civil § 2050.

The appellant also suggests that he was surprised by this trial development. In that regard, our supreme court said long ago in Walker v. Gray, 6 Ariz. 359, 57 P. 614 (1899):

Surprise which is the result of no lack of diligence, and which operated to the prejudice of the party surprised, upon the trial, and prevented his obtaining evidence material and competent, is a good ground for the granting of a new trial. The party affected, however, must first have exhausted all his other remedies, before he is entitled to a new trial. He will not be permitted to take his chances of obtaining a verdict or decision, and to then for the first time avail himself of the point on motion for a new trial. 6 Ariz. at 359, 57 P. 614.

Ries v. McComb, supra, is distinguishable. Alth...