Aulgur v. Zylich
| Decision Date | 05 April 1965 |
| Docket Number | No. 24165,24165 |
| Citation | 390 S.W.2d 553 |
| Parties | Buddy AULGUR, Respondent, v. Ronald ZYLICH, Appellant. |
| Court | Missouri Court of Appeals |
Paul H. Niewald, Gordon, Adams, Niewald & Risjord, Kansas City, for appellant.
Ira K. Witschner, Thomas J. Conway, Jr., E. E. Thompson, Kansas City, for respondent.
This is an action for damages in the amount of $10,000.00 for personal injuries sustained by plaintiff on March 3, 1962, when an automobile driven by defendant was allegedly caused to run into and strike plaintiff while he was walking on a public street.
Plaintiff's petition was filed on March 22, 1962. On May 14, 1963, written interrogatories were propounded by defendant to plaintiff, inclusive of Interrogatory No. 8 which asked for names and addresses of persons having knowledge of the incident alleged in plaintiff's petition.
Plaintiff filed written answers to defendant's interrogatories on May 28, 1963 and in response to Interrogatory No. 8 stated, 'I understand that there were two or three witnesses but their names are unknown to me at this time'.
Trial of the case began on April 20, 1964 and was to a jury. During the trial plaintiff produced witnesses John Botkin and Helen Frazer and undertook to examine them concurning the accident. Defendant objected to their testimony on the ground their names had not been disclosed by plaintiff's answers to defendant's interrogatories. The trial court sustained defendant's objections and refused to allow the proffered witnesses to testify. Upon examination out of the jury's hearing they testified they were first interviewed as witnesses by plaintiff's attorney approximately two months prior to the trial.
The trial resulted in a jury verdict and judgment for defendant. Plaintiff timely filed a motion for a new trial based on the sole ground that the trial court committed prejudicial error in refusing to allow plaintiff's witnesses Frazer and Botkin to testify, because they were material eye witnesses whose testimony was essential to plaintiff's recovery. The motion is supported by allegations that plaintiff gave truthful answers to defendant's interrogatories, that the witnesses were found after such answers were made, and that no subsequent interrogatory was exhibited by defendant. The motion was sustained by the trial court and this appeal resulted.
The only issue in this appeal is whether the trial court erred in granting a new trial after refusing to admit the testimony of witnesses for plaintiff not disclosed by his answers to defendant's interrogatories.
Defendant concedes that plaintiff's answer to Interrogatory No. 8 was true at the time given. But, says defendant, the answer became incorrect approximately two months before trial when plaintiff found witnesses Botkin and Frazer, and it then became plaintiff's duty to amend his answer or otherwise notify defendant of such discovery in order that he not be surprised and to afford him opportunity to prepare his defense. To hold otherwise, argues defendant, would defeat the purpose and intent of interrogatories which are designed to effect a full disclosure of witnesses in order that all parties might prepare for trial. It is defendant's contention that the trial court's action in refusing the testimony of plaintiff's witnesses was within its sound discretion, proper under the circumstances, and that the granting of a new trial was erroneous and to defendant's prejudice.
To the contrary, it is plaintiff's position that there was no continuing duty on him to amend his answer, which was truthful at the time it was filed, in order to communicate new information subsequently learned, particularly since defendant made no effort, after receiving plaintiff's original answer, to further avail himself of discovery procedures to learn whether plaintiff had obtained later knowledge of witnesses to the occurrence. It is suggested by plaintiff that if there is such continuing duty on a party, who has truthfully answered interrogatories, to keep his adversary informed of the results of his diligence in trial preparation--then it can be said that a litigant is compelled by his adversary to 'go to work for him'--a state of affairs proscribed by Judge Stone in State ex rel. Lawrence v. Craig, Mo.App., 329 S.W.2d 810.
However, plaintiff's basic appeal contention is to the effect that the trial court was vested with judicial discretion to decide the question presented. Admitting that the trial court could have, in the exercise of its sound discretion, either refused or accepted the testimony of the witnesses when offered during trial, plaintiff argues that the court thereafter was still vested with a sound discretion to review its trial ruling, and, in the exercise of that prerogative, to correct its own error by sustaining plaintiff's motion for a new trial.
Civil Rule 56.01, V.A.M.R., as supplemented by Civil Rule 57.01, requires a party to disclose, by answer to properly exhibited interrogatories, 'the identity and location of persons having knowledge of relevant facts.' There is no requirement by civil rule or statute that a party shall continue to furnish his adversary such information after having truthfully answered the interrogation originally propounded. To our knowledge no Missouri decision has so held.
Some authority on this question is found in federal decisions and in a limited number of state cases. The holdings are not uniform. Illustratively, it is held in Capone v. Norton, 8 N.J. 54, 83 A.2d 710, that if subsequent to the date of truthful and complete disclosure the interrogated party learns of additional witnesses he need not gratuitously provide the adverse party with the identity and location of such witnesses. To the contrary, it is held in Gebhard v. Niedzwiecki, 265 Minn. 471, 122 N.W.2d 110, that a party must disclose information received, after answering interrogatories, which is of substantial nature and which would render the previous answers untruthful, unreliable or incomplete. 1
For the purpose of this appeal it is not necessary for this court to decide whether plaintiff was required by Missouri discovery rules to amend his original answers and advise defendant of information learned since filing them. The essential question for our decision is not whether plaintiff technically conformed to the prescribed procedures of civil practice. Our concern is whether the trial court acted within the bounds of its own authority.
It is well established that the trial court has a broad discretion to choose a course of action during trial when evidence is challenged on the ground it has not been disclosed by answers to interrogatories. In the sound exercise of that discretion, the trial court may admit or reject such evidence, or otherwise determine and impose appropriate sanctions for violations of rules governing interrogatories. This rule is stated in Barron & Holtzoff, Federal Practice and Procedure, Vol. 2A, Section 776, p. 44 (1963-4 pocket part) as follows:
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