BF Goodrich Tire Company v. Lyster, 20429.

• Decision Date: 07 February 1964
• Docket Number: No. 20429.,20429.
• Citation: 328 F.2d 411
• Parties: The B. F. GOODRICH TIRE COMPANY, Appellant, v. E. H. LYSTER, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

328 F.2d 411 (1964)

The B. F. GOODRICH TIRE COMPANY, Appellant, v. E. H. LYSTER, Appellee.

No. 20429.

United States Court of Appeals Fifth Circuit.

February 7, 1964.

James E. Clark, and Bibb Allen, Birmingham, Ala., for appellant, London, Yancey, Clark & Allen, Birmingham, Ala., of counsel.

Roger F. Rice, J. Kirkman Jackson, Birmingham, Ala., for appellee.

Before RIVES and WISDOM,^* Circuit Judges.

WISDOM, Circuit Judge.

The complaint alleges that E. H. Lyster, the plaintiff, was in one of the B. F. Goodrich Tire stores in Mobile, Alabama, to purchase tires when Earl Jones, branch manager of the store, in the scope and furtherance of his employment, attacked Lyster without provocation, causing serious injury. His injuries were an effusion and fracture of his right knee and one or two bites on the arm. Lyster has had a history of difficulties with his knee and the amount of injury to it resulting from the fight was strongly in dispute in the trial.

The affray took place after several hours of more or less steady drinking engaged in by both Jones and Lyster, according to the defendant. According to the plaintiff, however, he did not have a drink. In the trial the issues were those one would expect to be fought over in such a case. Was Jones or Lyster telling the truth. Had Lyster been drinking? If so, was he drunk? Who was the aggressor? The defendant took the legal position that B. F. Goodrich could not be charged under the doctrine of respondent superior for acts which took place long after regular hours on a Saturday evening as a result of a personal quarrel during a private drinking bout.

The plaintiff filed suit in the Alabama state courts. The defendant removed the suit to the federal courts. After a hard fought trial, the jury awarded the plaintiff $30,000 in compensatory and punitive damages.

The appeal raises the following questions:

A) Is there any substantial evidence that the store manager Jones was acting in the line and scope of employment when he assaulted the plaintiff?

B) Was it reversible error for the trial judge to refuse the written charges of the defendant which stated that Jones was not acting in the line or scope of employment if the fight was over the purchase of whiskey or was the result of a personal argument?

C) Was it reversible error for the trial judge to refuse to charge that the jury may look at the age and relative size of the participants in passing on the defense of self-defense?

D) Was it reversible error to refuse to charge that the jury could mitigate the damages if it found that the plaintiff used abusive and insulting language to Jones?

E) Did the insinuation of plaintiff\'s counsel that Jones had been a drunkard create a bias which could not be cured by the admonition of the trial judge?

F) Did the trial judge abuse his discretion in failing to grant defendant\'s motion for new trial on the ground that the amount of the award by the jury was excessive?

G) Was it error for the trial judge to refuse to admit into evidence the deposition of Posey?

We reverse and remand for the reason that the trial judge erred in refusing to admit the deposition of Lonnie Posey.

I.

Posey was a salesman for Goodrich and was present during all of the relevant events on the day of the fight. September 1, 1962, one of the attorneys for the plaintiff took Posey's deposition. During the course of the deposition, Posey was asked two questions with regard to contradictory statements he had allegedly made at some prior time. Posey, on the advice of defendant's counsel, refused to answer the two questions until the earlier statements were furnished him. Both Posey and defendant's counsel were of the impression that the statements mentioned were written statements. In fact, they were oral statements. The plaintiff's attorney realized that Posey and opposing counsel were under a misimpression, but did nothing to correct it. After Posey's continued refusal to answer unless shown the statements, the examination was completed as provided in Rule 37(a) of Federal Rules of Civil Procedure.¹ September 18, the plaintiff petitioned the court for an order compelling the deponent to answer the questions. The hearing for this motion was set for September 24, the day before the actual trial. At this hearing the defendant's counsel learned for the first time that Posey's earlier statements were oral statements.

In the presence of the court, the attorneys for the parties agreed informally that the deposition would be admitted, provided that Posey made written answers to the unanswered questions. Unfortunately, the defendant's attorney entered into this agreement without knowing that Posey had severed his ties with Goodrich, had taken another job, and at that moment was on his way to Alexandria, Louisiana. It was physically impossible by the time of the trial for the defendant's counsel to find Posey and obtain written answers to the questions.

The defendant's counsel brought out these facts when the deposition was offered in evidence. The trial judge, exercising his discretion under Rule 37(b) (2) (ii),² refused to allow the introduction of the deposition. In his order, he stated that he accepted, without further proof, the statement that Posey was not within one hundred miles of the court. The trial judge therefore did not rely on Rule 26(d). Instead, he treated the informal agreement of September 24 as an order pursuant to Rule 37(a) (despite the fact that no actual order appears to have been made), and the offering of the deposition without the additional written answers as a refusal to comply with the order, as governed by Rule 37(b) (2).

Technical requirements in the Rules cast strong doubt on the correctness of the Court's ruling. (1) Rule 37(a) provides that the party seeking discovery "may apply to the court in the district where the deposition is taken for an order compelling an answer." Here that was the District Court for the Southern District of Alabama. The plaintiff did not file his motion in that district. Instead, he filed it in the District Court for the Northern District of Alabama, and the trial court, not the court ordering the deposition, issued the order compelling the witness to answer. (2) Rule 37(b) deals with failure to comply with the order, and the sanctions which may be imposed "by the court in the district in which the deposition is being taken." The trial judge relied on this section, citing 37(b) (2) (ii), in refusing to allow the deposition to be admitted. (3) This subparagraph allows sanctions to be imposed on "the disobedient party", the "party" actually "ordered" to answer the questions propounded. Under 37(a) this is "the refusing party or deponent and the party or attorney advising the refusal." Here, the sanctions were imposed on the defendant. Barron and Holtzoff, 2A Federal Practice and Procedure (Wright's Ed.1961) § 852 states:

"The following propositions appear to be sound: (1) the court in the district where the deposition is being taken has the power to compel an answer to a proper question, and it can enforce such order by contempt proceedings against either a party or a witness; (2) the court in the district where the suit is pending cannot impose any sanction against a witness who is not a party, nor an officer or managing agent of the party; (3) the court where the action is pending, having jurisdiction of the parties, can compel an answer to a proper question directed to a party, and in addition to contempt, can enforce the other consequence set out in Rule 37(b)."

See also 4 Moore, Federal Practice § 37.03 (1963). Posey was a mere Goodrich employee at the time of the deposition, and he was not even an employee at the time the trial court ordered the questions answered.

In terms, Rule 37 supports the defendant's position. We prefer, however, to avoid the uncertain footing a tight construction of Rule 37 affords. We place our decision on the broader, firmer ground that in the circumstances of this case it was an abuse of judicial discretion for the trial court to exclude the deposition.

We read Rule 37 as establishing a flexible means by which a court may enforce compliance with the Federal discovery procedures through a broad choice of remedies and penalties. See Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Col.L.Rev. 480 (1958); Developments in the Law — Discovery, 74 Har.L.Rev. 940, 991 (1961). Although a trial judge's latitude in framing orders and in penalizing failures to comply is broad, his discretion is not limitless. Mitchell v. Johnson, 5 Cir. 1960, 274 F.2d 394; O'Toole v. William J. Meyer Co., 5 Cir. 1957, 243 F.2d 765; Independent Productions Corp. v. Loew's, Inc., 2 Cir. 1960, 283 F.2d 730. And although Rule 37(b) applies to all failures to comply, whether wilful or not, the presence or lack of good faith in the parties is relevant to the orders which should be given and the severity of the sanctions. Societe Internationale Pour Participations Industrielles v. Rogers, 1958, 357 U.S. 197, 207, 78 S.Ct. 1087, 2 L.Ed. 2d 1255.

In deciding whether the trial judge overstepped his bounds, it is necessary to weigh the relative faults and relative hardships. Assuming that there was fault on the part of the defendant's attorney in not being better informed as to the whereabouts of his key witness, it seems to us that the greater fault lay with the plaintiff's attorney who knowingly failed to correct the misimpression of both Posey and defendant's attorney as to the existence of written statements. Posey was justified in refusing to answer the questions at the time of the examinaction, and the defendant's attorney properly put forth his best efforts to secure the answers once the misimpression had been corrected.

By the disallowance of the entire deposition, Goodrich was severely injured: it lost the testimony of one of two favorable eye-witnesses who was present throughout the day of the injury. Only the testimony of Jones...