Bachner v. Pearson

Decision Date13 October 1967
Docket NumberNo. 868,868
Citation432 P.2d 525
PartiesJess G. BACHNER, d/b/a Fairbanks Aircraft Service, Petitioner, v. AL PEARSON, Tom Martin, Stanislaw Poborski and Leon Riley, Respondents.
CourtAlaska Supreme Court
OPINION

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

DIMOND, Justice.

This is a personal injury action brought by respondents against petitioner in July 1963, involving the crash of petitioner's Piper Comanche airplane. The principal basis for respondents' claim is that petitioner was negligent in failing to properly inspect and maintain the airplane's muffler and exhaust system, and that as a result, carbon monoxide escaped into the cabin of the airplane asphyxiating the pilot, respondent Pearson, resulting in the crash.

Respondents made efforts to have the muffler and exhaust system of the airplane produced by petitioner for their inspection. On April 25, 1967 the court below found that petitioner's conduct in regard to the location and production of the muffler was contumacious of orders of the court and not in good faith, and entered the following order:

That all facts relating to the muffler and exhaust system of Piper Comanche aircraft PA 24-250, Ser. No. 24-1809, shall be and the same are taken to be established for the purposes of this action in accordance with the claims of the plaintiffs.

Petitioner asks us to review that order and vacate it. We have decide to grant review because we believe the order in question is of sufficient importance as to justify deviation from the normal appellate procedure by way of appeal. 1

The court's order was made pursuant to Civil Rule 37(b)(2). That rule provides that if a party refuses to obey an order made under Civil Rule 34 2 to produce any decument or other thing for inspection:

the court may make such orders in regard to the refusal as are just, and among others the following:

(a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order * * *.

The question here is whether petitioner refused to obey an order made under Civil Rule 34 to produce the airplane muffler for respondents' inspection, so as to justify the court's order made under Civil Rule 37(b)(2)(a).

On March 15, 1966 respondents filed a motion to produce the muffler for inspection and examination. On March 22, 1966 petitioner filed a statement in response to the motion to produce which said:

Jess Bachner, an individual doing business under the name and style of Fairbanks Aircraft Service, has no objection to the entry of an Order directing him to produce the muff, muffler, exhaust and heat exchanger system but he has previously testified under oath in a deposition taken in this action, he does not now have in his possession the property sought to be inspected and therefore cannot produce it.

Jess Bachner will produce any property in his possession, but does not want his failure to object to the motion to be taken as an acknowledgment of ability to produce the property mentioned in the motion.

On April 6, 1966, at a hearing on respondents' motion to produce, petitioner's counsel agreed that petitioner would produce an affidavit the following Friday in support of the showing made in support of his statement quoted above. Such an affidavit was never filed.

Our dissenting colleague points out that no 'formal' order to produce was ever entered. That may be true. No such order appears in the record on review prepared by the clerk of the superior court at petitioner's request. But it is clear that it was petitioner's understanding that he had been ordered by the court to produce the muffler for inspection, whether such order could be characterized as 'formal' or not. In April 1967 petitioner filed an affidavit in opposition to the motion previously filed by respondents which gave rise to the order being reviewed here. In such affidavit petitioner stated that 'he knew he was under an order of the court to produce the muffler.'

The question here is whether petitioner refused to obey such an order and whether the sanction imposed by the court below was justified. As mentioned above, petitioner made a statement on March 22, 1966 in response to respondents' motion to produce the muffler that he did not have it in his possession and therefore could not produce it. If these were the only facts involved, it would be questionable that the court could hold that petitioner had refused to obey the order to produce the muffler, so as to justify imposition of the sanction permitted by Civil Rule 37(b). But there were other facts to be considered by the court.

At a deposition taken on January 13, 1965 petitioner stated that he knew where the muffler was at that time and that it was in his possession. Affidavits of two witnesses filed in April 1967 show that petitioner had the muffler in his possession, and knew that it was in his possession, in June 1965. In December 1966, in response to a request for admissions directed to petitioner by respondents, petitioner stated that the muffler had been turned over to him by the C.A.B. or the F.A.A., that respondents had requested on several occasions that petitioner produce the muffler, and that petitioner was the last known person to have possession of the muffler.

In his affidavit filed in April 1967, petitioner stated that he had been notified in March 1967 by his counsel that an order had been entered requiring him to produce the muffler, and that 'The first time that he was notified that a request that he produce the muffler was made was in March 1967, more than four years after the accident.' That such a statement is true appears highly unlikely, in view of the fact that a year before in March 1966 petitioner had made a statement, directed to respondents' motion for an order of production, to the effect that he had no objection to the entry of such an order, but that he could not produce the muffler because it was not in his possession.

In addition, petitioner stated in his affidavit:

In response to interrogatories number 108 and 109, he did not respond to them immediately because he was searching for the muffler and wanted to wait until those efforts were exhausted before responding to them. He could easily have denied having any knowledge where the muffler was and rested on that denial thereafter, but he knew he was under an order of the court to produce the muffler and wanted to make a good faith effort to comply with it before responding to the interrogatory.

(Emphasis added.)

Such a statement is significant. The interrogatories mentioned were directed to petitioner in December 1966. 3 If petitioner knew that he was under an order of the court to produce the muffler at the time he received the interrogatories in December 1966, then he knew of such order prior to March 1967, contrary to the statement contained in his April 1967 affidavit that he did not know of such an order until March 1967.

Moreover, petitioner was dilatory in responding to the interrogatories. In December 1966 the court allowed petitioner until February 1, 1967 to answer the interrogatories. They were not answered until April 19, 1967, after there had been filed respondents' motion which led to the entry of the order being reviewed here.

Finally, it was considered significant by the court below that with respect to the March 1966 motion to produce the muffler for inspection, petitioner never filed the affidavit in support of the showing that he did not have the muffler in his possession, although he agreed that he would produce such an affidavit in a few days after April 6, 1966.

In summary, petitioner's contention seems to be that he was not aware of the necessity of producing the muffler until March 1967, and that thereafter he conducted an intensive search and found the muffler on or about April 11, 1967 and was then willing to produce it. On the other hand, the record could very well indicate to the court below that petitioner knew of the necessity of producing the muffler at the latest in March 1966, but did not get around to actually producing it until over a year later in April 1967. In these circumstances, it would appear that the court below could conclude that petitioner's failure to do anything about complying with the requirement to produce the muffler between March 1966 and April 1967 constituted a 'refusal to obey' an order of production within the meaning of Civil Rule 37(b)(2).

In determining whether a party's actions constitute a refusal to obey an order to produce and whether the sanction expressly provided by Rule 37(b)(2) (a) should be imposed, the superior court's discretionary authority is involved. We will reverse only if we are convinced that there has been an abuse of discretion. We are not so convinced in this case. In the light of the events surrounding respondents' efforts to have petitioner's muffler produced for their inspection and examination, the court below could well have concluded that petitioner was recalcitrant and was not in good faith attempting to comply with what was required of him. We cannot say that the court had no justification for imposing the sanction that it did under Civil Rule 37(b)(2) (a).

The order of the superior court is affirmed.

RABINOWITZ, Justice (dissenting).

This petition for review concerns the appropriateness of discovery sanctions imposed pursuant to Civil Rule 37(b)(2)(a). 1 In my view the record does not justify the harshness of the particular sanctions which the trial court entered against petitioner Bachner. 2

On November 15, 1962, a Piper Comanche, which...

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