Carver v. Salt River Val. Water Users' Ass'n

• Decision Date: 31 October 1968
• Docket Number: CA-CIV,No. 1,1
• Citation: 8 Ariz.App. 386,446 P.2d 492
• Parties: Gail S. CARVER, Appellant, v. SALT RIVER VALLEY WATER USERS' ASSOCIATION, a corporation and County of Maricopa, a political subdivision of the State of Arizona, Appellees. 577.
• Court: Arizona Court of Appeals

Page 492

446 P.2d 492

8 Ariz.App. 386

Gail S. CARVER, Appellant, v. SALT RIVER VALLEY WATER USERS' ASSOCIATION, a corporation and County of Maricopa, a political subdivision of the State of Arizona, Appellees.

No. 1 CA-CIV 577.

Court of Appeals of Arizona.

Oct. 31, 1968.

Rehearing Denied Dec. 4, 1968.

Kramer, Roche, Burch, Streich & Cracchiolo, by Robert E. B. Allen, Phoenix, for appellant.

Jennings, Strouss, Salmon & Trask, by Rex H. Moore, and William R. Jones, Jr., Phoenix, for appellee Salt River Valley Waters Users' Association.

McKesson, Renaud, Cook & Miller, by J. Gordon Cook, and Joseph B. Miller, Phoenix, for appellee County of Maricopa.

MOLLOY, Judge.

A tree fell over on plaintiff's car as she was driving on a public highway in Maricopa County. She brought suit for her injuries against the county, which maintained the highway, and against the Salt River Valley Water Users' Association, which maintained an irrigation ditch on the land where the tree was located, alleging that the tree constrituted a nuisance and that defendants were guilty of negligence in permitting it to stand.

When the case came to trial, the trial judge excluded a number of witnesses called by plaintiff because of her failure to set forth their names in answers to interrogatories propounded by the defendant county. Plaintifff thereafter sought a continuance because of the ruling excluding witnesses, which was denied. Certain photographs offered by plaintiff were also excluded from evidence, and at the close of plaintiff's case, the trial judge directed a verdict in favor of both defendants. Plaintiff brings this appeal, challenging the correctness of these rulings.

The accident occurred on a windy day. Plaintiff was driving southward on 67th Avenue, a paved county highway near Glendale. Just west of, and parallel to 67th Avenue, partly on the public right of way, was a lateral irrigation ditch which was maintained by the defendant Salt River. The tree which fell was a large cottonwood. Its trunk, located about five feet outside of the highway right of way, was separated from the pavement by the Water Users' ditch. The tree was one of a row of cottonwoods located in or along the west bank of the ditch.

After disposition of preliminary motions and the undertaking of various discovery procedures, plaintiff's attorneys in October, 1964, filed and served a 'certificate of readiness and motion to set' pursuant to Rule V of the Uniform Rules of Practice of the Superior Court, 17 A.R.S. A pretrial conference was held on March 30, 1966. The pretrial order set the cause for trial by jury on September 6, 1966. The order provided that '(a)ll parties will have the right to make additional discovery up to twenty days prior to the trial date.'

Two days after the pretrial conference, the defendant county served a set of interrogatories on plaintiff pursuant to Rule 33 of the Rules of Civil Procedure, 16 A.R.S. One interrogatory, No. 22, asked if plaintiff was aware of any written statement or report of the accident made by or concerning the knowledge of any witness or purported witness. That interrogatory was answered '(n)o,' although plaintiff's counsel had received, in August of 1963, an accident report made out by Deputy Sheriff Pitts, whom plaintiff sought to call as a witness at the trial. Interrogatory No. 25 asked plaintiff to state to name of every witness believed or understood by plaintiff to have knowledge concerning the accident '* * * regardless if the knowledge is prior to, during or subsequent to such accident.' Plaintiff's answer gave the name of only one person, Eugene Reems, who lived near the scene of the accident. Interrogatory No. 27 asked if plaintiff knew of any investigation or tests made concerning the accident. This was answered '(n)o.' No. 27 asked for the name of any witness with knowledge that the previous condition of the tree was such that a reasonable person should have known that it was likely to fall. This latter interrogatory goes directly to the critical liability issue of this case. It was answered '(n)one.' At trial, in addition to Deputy Pitts, plaintiff sought to call as witnesses one Professor Decker, a tree physiologist, who had examined the stump of the tree in April, 1963, at the request of plaintiff's attorneys, and plaintiff's daughter, who had visited the scene with plaintiff some three weeks after the accident.

On August 31, 1966, which was six days prior to trial with a three day Labor Day weekend in the interim, the two attorneys who were to try the case for plaintiff went to view the scene of the accident and meet with the prospective witness Reems. They found that Reems was not at home and it was thereafter discovered that he was away on an extended vacation. He had not been subpoenaed. The two attorneys then undertook a neighborhood survey in search of persons having knowledge of the condition of the tree. No such survey had been previously conducted. They found that one Sherrill, a neighbor of Reems who lived 'approximately across the street from the scene of the accident,' and who had lived in the same place for some 25 years, had come upon the scene shortly after the accident, and had knowledge of the previous condition of the tree in question.

The two attorneys then returned to their office and first attempted to call, and then wrote counsel for both defendants stating that plaintiff intended to call as witnesses Mr. Sherrill, Professor Decker, Deputy Sheriff Pitts, and possibly another person not yet interviewed. These letters stated that the information was being sent to counsel in view of the answers sought by the defendant county's interrogatories. They both closed with a statement to the effect that, if counsel wished to request a continuance, plaintiff's counsel would have no objection.

The parties convened for trial at the previously scheduled time on September 6, 1966. Prior to commencement of trial, both defendants moved to exclude as witnesses for the plaintiff all of the persons named in the recent letters by plaintiff's attorneys on the grounds that they were not referred to in plaintiff's answers to interrogatories or suggested as witnesses until after the twenty-day pretrial discovery deadline had passed. After the court had sustained defendants' motion, plaintiff moved for a continuance, '(i)n view of the ruling of the Court and in view of the fact that Mr. Reems, the other witness, is not available, * * *' Defendants objected, and the motion was denied.

In presenting plaintiff's case, her attorneys elicited testimony from plaintiff, medical witnesses, and one agent of each of the defendants called for cross-examination. Plaintiff also sought to call her daughter, primarily on the theory that her testimony would corroborate plaintiff's on the post-accident condition of the trunk of the tree. Defendants moved to exclude the daughter on the same basis urged in the previous motion to exclude. This motion was also granted.

Against this background, plaintiff argues that the trial judge abused his discretion in excluding the testimony of plaintiff's witnesses and in failing to grant a continuance. Plaintiff's attorneys concede their neglect in failing to list the proffered witnesses in their answers to defendant's interrogatories, but contend that defendants made no showing that they would be prejudiced by having the witnesses in question testify, and that, in the absence of such a showing, the 'extreme' sanction of exclusion should not have been imposed.

Our Rules of Civil Procedure are designed to promote decisions on the merits after a full and fair hearing, and the sanction of exclusion of a witness should never be lightly invoked. Still, a failure to disclose the names and addresses of witnesses in response to interrogatories '* * * constitutes a deprivation of the substantial rights of the propounding party.' Burke v. Central Railroad Company of New Jersey, 42 N.J.Super. 387, 126 A.2d 903, 907 (1956). Many variable circumstances determine whether a sanction is appropriate and if so, what sanction should be imposed. The precise nature of the interrogatories and discovery posture of the case, willfulness and the degree of prejudice are some of the important factors. There are cases holding that under some circumstances, exclusion is inappropriate, King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959); Young v. Saroukos, 189 A.2d 437 (Del.1963), and other cases holding exclusion justified. Thompson v. Calmar Steamship Corporation, 331 F.2d 657 (3d Cir. 1964); Gebhard v. Niedzwiecki, 265 Minn. 471, 122 N.E.2d 110, 113--116 (1963). The decision is very largely a matter within the sound discretion of the trial court. Texas and Pacific Railway Company v. Buckles, 232 F.2d 257 (5th Cir. 1956).

In this case, the interrogatories were submitted to and answered by plaintiff after the pretrial conference, which followed plaintiff's filing of her certificate of readiness and motion to set the case for trial. We believe that it would be normal procedure, and that it is proper, for opposing counsel to rely upon such answers in preparing their case and in consulting with their clients as to settlement authority. Plaintiff's answers under any view of the facts were misleading. Known witnesses were not disclosed. Equally misleading under these circumstances, is the failure to make a reasonably diligent effort to discover evidence. When a plaintiff files a lawsuit, proceeds to a pretrial conference, and thereafter unequivocally answers that there are no known witnesses on the key liability issue, our view is that the defendant is unfairly deprived of an opportunity to prepare for trial if the plaintiff in the last few days prior to trial conducts the investigation that should have been long since completed and turns up critical liability evidence at this time.

If answers to critical questions such as these can be rendered meaningless by oversight, or worse, and by...