Campbell v. Regal Typewriter Co., Inc.

• Decision Date: 30 December 1976
• Citation: 341 So.2d 120
• Parties: L. E. CAMPBELL, Individually and d/b/a All-Type Business Machines Sales and House of Typewriters v. REGAL TYPEWRITER CO., INC. SC 1607.
• Court: Alabama Supreme Court

Page 120

341 So.2d 120

L. E. CAMPBELL, Individually and d/b/a All-Type Business Machines Sales and House of Typewriters v. REGAL TYPEWRITER CO., INC.

SC 1607.

Supreme Court of Alabama.

Dec. 30, 1976.

Charles L. Howard, Jr., of Rogers, Howard, Redden & Mills, Birmingham, for appellant.

Joe M. Berry and James T. Baxter, III, of Cloud, Berry, Ables, Blanton & Tatum, Huntsville, for appellee.

SHORES, Justice.

This controversy has been in litigation since March of 1971. It began when Regal Typewriter Company, Inc. (Regal) filed suit against L. E. Campbell, Individually and d/b/a All-Type Business Machines Sales and House of Typewriters (Campbell) claiming $87,585.25 due by verified account from August 7, 1970. The first trial was to a jury, but the trial court withdrew the case from the jury and entered judgment for Regal. The trial court was reversed in Campbell v. Regal Typewriter Co., Inc., 291 Ala. 334, 280 So.2d 764 (1973).

The cause was remanded for a second trial which resulted in a mistrial.

In the present case, Regal claims damages in the amount of $87,664.24 for merchandise sold from August, 1969, through August, 1970. Campbell denied that he owed Regal any amount, said that the account was paid, pleaded accord and satisfaction, and the bar of the three-year statute of limitations. He also filed counterclaims which charged breach of an oral agreement for exclusive territory and damages for fraud and deceit in misrepresenting the price Campbell would pay for machines from Regal.

The case was tried to a jury which rendered a verdict in favor of Regal in the amount $94,812.45. Campbell appealed.

In 1969, Campbell met with representatives of Regal in Atlanta, Georgia, to discuss terms of an agreement under which Campbell would purchase all of Regal's typewriters in seven southeastern states. Various terms of the contract were discussed between the parties in Atlanta, and it was agreed that the terms would be reduced to writing by Regal and forwarded to Campbell. Campbell began picking up the used typewriters immediately. Thereafter, on March 31, 1969, Regal sent to Campbell the written agreement, which essentially provided that Campbell would purchase all secondhand typewriters traded in against new Royal typewriters at various district offices located throughout the southeast. Campbell was to pay for all merchandise on a 30--day basis and was to pay any freight costs incurred in removal of the typewriters from the district offices. Regal agreed to accept charge-backs on incomplete and damaged machines, and Campbell was to make such machines available for inspection by Regal, if requested. Charge-backs were to be made within 60 days after Campbell took possession.

Regal also agreed that no 'as is' or secondhand typewriters would be sold directly by them in the seven states involved, and agreed to refer all requests for secondhand machines in this area to Campbell. The agreement provided that it was understood by Campbell that Regal had no restrictions on any of its wholesalers as to the areas in which its secondhand typewriters were sold. The price to be paid for these machines was determined by a wholesale list of current prices, which list Campbell had. The written agreement was said to contain the entire agreement between the parties.

When Campbell received the written agreement, he called Regal in Atlanta, objected to the 30--day terms, and insisted that he be given 90--day terms. He testified that he also questioned the meaning of a warranty provision set out in the agreement because he did not understand it, and still did not understand it at the time of the trial. The agreement was never signed, but both parties operated under the terms of it, Campbell being given 90--day terms instead of the 30--day term. They had no more discussion about the contract.

Campbell testified that, by the winter of 1969, he was not getting credit for his charge-back requests and complained to Regal about it. According to Campbell, he never did receive all of the charge-back credit. Regal denied that and its representative testified that Campbell received all of the credit to which he was entitled.

Also at about the same time, Campbell said he received information that Regal was selling to other wholesalers at prices substantially lower than Campbell was getting; and that, in the spring of 1970, he discovered that Regal had consummated a transaction with another wholesaler whereby that wholesaler was charged prices far below the unit prices being invoiced to Campbell. Regal denied this. Thereafter, Campbell made no further payments, stopped picking up the used machines, and advised Regal of his intention to terminate the agreement.

The transcript in this case is long and complex. There is evidenced much acrimony between the parties. On appeal, Campbell cites some one hundred and thirty issues to be considered by this court. To attempt to simplify the issues and in an effort to focus the parties on the major areas of contention on appeal, we granted a motion for a pre-hearing conference under the new rules of appellate procedure. See ARAP 33. Three members of this court constituted a panel before which the attorneys for both appellant and appellee appeared and agreed that the primary issues involved on appeal were in the areas which will be treated herein.

Campbell argues that he was prejudiced by the court's failure to require Regal to make full and complete answers to interrogatories, to produce certain documents sought by Campbell, and should have imposed more stringent sanctions for Regal's failure to fully answer interrogatories and produce documents. He also argues that the trial court abused its discretion in requiring him to answer interrogatories and requiring him to produce various documents at the motion of Regal, says that he should have been awarded expenses incurred by him by being required to make answers to various interrogatories, and should not have been subjected to deposition in the manner required by counsel for Regal.

The thrust of Campbell's argument is that the court abused its discretion in allowing Regal greater discovery than was permitted Campbell.

As we have indicated, the record in this case is long, and it is replete with discovery motions of various kinds. Both sides sought, and were permitted, extensive discovery. Both were required to answer lengthy interrogatories, both were required to produce voluminous documents, and both were required to submit to deposition at the instance of the other. The trial court was very generous, properly so, in allowing exhaustive discovery by both parties. It finally entered an order requiring that all discovery be completed by a specific date. Neither party discovered all that was sought.

The Alabama Rules of Civil Procedure permit very broad discovery and the rules must be broadly and liberally construed. Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So.2d 210 (1975). However, ARCP 26(c) recognizes that the right of discovery is not unlimited, and gives the court broad power to control the use of the process and to prevent its abuse by any party. The rule does not allow an arbitrary limit on discovery, but instead vests the trial court with discretion in the discovery process. The question on review then becomes one of whether, under all of the circumstances, the trial court has abused this discretion. Tiedman v. American Pigment Corp., 253 F.2d 803 (4th Cir. 1957). In exercising its discretion, the trial court should be guided by the spirit of the rules, which is to permit full discovery so as to save time, effort and money and to expedite the trial with a view to achieving substantial justice for each litigant. First National Bank in Greenwich v. National Airlines, Inc., 22 F.R.D. 46 (D.C.N.Y.1958).

The particular details of the discovery process must necessarily be left to the sound discretion of the trial court. The court may enter appropriate orders under ARCP 26(c) and if necessary, on a showing of undue burden, it may order alternative means of discovery. Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973). Of course, the fact that it may be difficult to produce information which is discoverable is not a justification for disallowing the discovery of that information and the fact that it is frequently burdensome to answer extensive interrogatories is not sufficient alone for excusing a party from making such answers. Krantz v. United States, 56 F.R.D. 555 (D.C.W.Va.1972).

Applying these rules to the instant case, we conclude that, under the circumstances presented by the record before us, the trial court did not abuse its discretion. As indicated, discovery was extensive and was evenly allowed each party. Both were required to produce extensively. On occasion, the court required Regal to pay the expenses incurred by Campbell in meeting the discovery requirement. We find no reversible error in the court's handling of the discovery process.

Campbell next contends that the trial court erred in permitting Regal's witness, a Mr. Centracchio, to testify as to the amount which Regal contended was due on account from Campbell.

The record reflects the following:

'Q. Mr. Centracchio, I hand you what has been marked Plaintiff's Exhibits 1 through 32, inclusive, and ask you if you have previously looked at those and gone through them?

'A. Yes, I have.

'Q. Mr. Centracchio, were those records records of Regal Typewriter Company kept in the regular course of business?

'A. Yes, they were.

'Q. Were they kept under your supervision and control?

'A. Yes, sir.

'Q. Do those records accurately and truly reflect the amount of money due, owing and unpaid from Mr. L. E. Campbell to Regal Typewriter Company?

'MR. HOWARD: We object to the form of that question, if the Court please, and to the lack of predicate for the testimony that is now called for.

'THE COURT: Overrule.

'. . .

'Q. Mr. Centracchio, what is the total amount owed...