HOUSTON, Justice.
This is an appeal from the trial court's dismissal for refusal to provide discovery, pursuant to Rule 37, A.R.Civ.P. We affirm.
Walter Iverson sued Xpert Tune, Inc. ("Xpert"), alleging breach of contract, fraud, and misrepresentation. The substance of these claims was that Xpert had diagnosed Iverson's automobile as having a defective fuel pump and had subsequently replaced the pump, when, in fact, he alleges, the fuel pump was "in good working order."
Xpert filed with the trial court, and served upon Iverson's counsel, a request for production and/or inspection of documents, specifically requesting to inspect "[t]he fuel pump which [Xpert] removed from [Iverson's] vehicle on or about July 17, 1987." Iverson and Xpert agreed to schedule the inspection of the fuel pump on or prior to September 7, 1988, at the time set for Iverson to depose Xpert's expert witness. The day preceding the scheduled deposition of Xpert's expert witness, Iverson informed Xpert that the fuel pump was unavailable for inspection as requested.
On September 8, 1988, Xpert filed a motion to dismiss pursuant to Rule 37, A.R.Civ.P., offering the following statement as grounds in support thereof:
"4. [D]ue to [Iverson's] own actions in direct contradiction with [Xpert's] outstanding request to inspect the subject fuel pump, [Xpert has] been denied the opportunity to inspect and/or examine the most crucial piece of evidence in this case. [Xpert] submit[s] that to force [it] to trial to defend [Iverson's] claims without first having the benefit, as did [Iverson's] expert witness, to inspect and/or examine the subject fuel pump, would result in extreme and undue prejudice to [Xpert], and handicap [Xpert] from effectively cross-examining [Iverson's] expert witness and rebutting [Iverson's] claim that the fuel pump was not defective. Though [counsel for Xpert] has no knowledge concerning whether counsel for [Iverson] actually informed his client that [Xpert] had an outstanding request to inspect the subject fuel pump, the law clearly places a duty upon [Iverson] and/or his counsel to preserve the requested evidence and guard against its destruction or disposal. [Iverson] has clearly breached this duty and, thereby, severely prejudiced [Xpert] in [its] defense to [Iverson's] claims."
Subsequently, the trial court held a hearing on Xpert's motion to dismiss for the purpose of determining the circumstances surrounding the discarding of the fuel pump, which was critical to this case. At this hearing, the trial court heard Iverson's testimony and also considered the testimony of Xpert's expert witness submitted by affidavit, filed with the trial court's permission. The trial court granted Xpert's motion to dismiss and entered a default judgment against Iverson pursuant to Rule 37(b)(2)(c), A.R.Civ.P., based on Iverson's willful failure to permit discovery. This appeal followed.
In its memorandum opinion, the trial court made the following findings of fact:
"Iverson took his automobile to Xpert for repair and maintenance. Xpert undertook repairs which included replacing the fuel pump; however, the repairs were unsuccessful. Iverson has sued Xpert for, among other things, fraud and claims that Xpert falsely represented that the fuel pump on his car was defective, and in reliance on the false representation Iverson allowed Xpert to replace the fuel pump and make other repairs on about July 17, 1987. When Xpert was unable to repair the car, Iverson reclaimed the old fuel pump and in December, 1987, he took his car to another mechanic who reinstalled the old fuel pump. Iverson contends that the old fuel pump performed satisfactorily after it was reinstalled. Iverson further testified that he discarded the new fuel pump which was installed by Xpert.
"Iverson filed suit on December 30, 1987. On March 27, 1988, Xpert filed interrogatories and a request for production of, among other things, the fuel pump. Counsel for Iverson mailed the interrogatories and motion for production
to Iverson on March 28, 1988. Xpert took Iverson's deposition on April 28, 1988, and as of the time of the deposition Xpert was aware that Iverson was living in Illinois and that the old fuel pump had been reinstalled on Iverson's car. Xpert filed no motion for Iverson to preserve the fuel pump, and Iverson's counsel represents that he inadvertently neglected to tell Iverson to preserve the fuel pump. However, Iverson knew that he should preserve the fuel pump.
"Counsel for the parties apparently agreed that the fuel pump need not be produced for inspection until the taking of Kerry Reagan's deposition. Mr. Reagan is a mechanic who would testify as an expert witness on behalf of Xpert. In an affidavit filed with the Court, Mr. Reagan testified that he was '[A]sked ... to consult with [Xpert's counsel] and give them an opinion regarding whether a fuel pump which is the subject of this lawsuit was actually leaking.' In addition, Reagan testified 'Had [he] been able to inspect the fuel pump, [he] would have been able to express an opinion as to its present condition, whether it was leaking and very possibly about the history of the fuel pump and whether it had been leaking in the past.'
"Mr. Reagan's deposition was set for September 7, 1988. On September 6, 1988, Iverson's counsel informed Xpert's counsel that the fuel pump was unavailable for inspection. Xpert immediately moved that this suit be dismissed pursuant to Rule 37, A.R.Civ.P.
"A hearing was held to determine the circumstances under which the old fuel pump was removed and discarded, and to determine an appropriate sanction. 8 Wright & Miller, Federal Practice and Procedure: Civil § 2284 n. 71.1 (Supp.1987). At this hearing Walter Iverson testified, and the Court received exhibits, legal memoranda from counsel and arguments.
"Iverson testified that because his car did not meet Illinois auto emission requirements, he took the automobile to a long-standing friend (Ed Carter) to have the electronic distributor replaced with a regular distributor. This occurred during the last week of August, 1988, and Carter replaced the distributor and told Iverson that if he was planning to go out of town to call him. Although Carter usually does not charge Iverson for any work he does, Iverson paid him $50.00. Iverson's attorney called and told him to come to Alabama for Reagan's deposition and bring the car. On August 30, 1988, Iverson called Carter to tell him he was going out of town, and Carter, at the end of the conversation said 'I forgot to tell you, I changed your fuel pump,' because the diaphragm was weak. Although Carter and Iverson had been friends for many years, he and Carter never discussed the pending litigation or the need to preserve the fuel pump although Iverson testified that he knew that he needed to preserve the fuel pump.
"Iverson reported this turn of events to his counsel, who, apparently, told him to retrieve the pump. Iverson called Carter back but Carter told him that he had taken the pump to the auto parts house where he purchased the new fuel pump. According to Iverson, it is the procedure in Illinois that if you get a new pump from a parts house you must leave a deposit, and when you bring in the old fuel pump your deposit is returned. Iverson could not explain why a person could not simply purchase a new fuel pump other than to say it is the procedure in Illinois. Finally, Iverson testified that he never made any effort to determine the name and location of the parts house to which the fuel pump was returned, and he never made any other effort to retrieve the fuel pump.
"The Court does not accept Mr. Iverson's version of the reasons for and the manner in which the fuel pump was removed and discarded. First, in the normal course of human affairs, Iverson and Carter would have discussed the nature of the needed repairs before the work was done. Iverson never suggested to Carter that the car was not operating properly and on the record before this
Court, there is nothing to suggest that the fuel pump required examination. Under these circumstances, the Court finds Iverson's testimony not credible concerning Carter's last minute disclosure that he replaced the fuel pump. Second, Carter must have incurred costs in buying the new fuel pump and distributor but, apparently, Carter and Iverson never discussed repayment of these expenses. If Iverson's testimony is to be believed, this is the first time he ever paid Carter for any work Carter has done for him, and the money he paid Carter was not reimbursement of expenses. The Court accepts the fact that a friend may provide free labor, but the Court finds it hard to believe that Carter also provided free parts. Third, the Court does not accept Iverson's explanation of why Carter could not purchase a new fuel pump. It is more reasonable to believe that Carter sold the used pump to the parts house and this, in and of itself, is insignificant. However, what is significant is that Iverson appears to be willing to manufacture an explanation for Carter's actions rather than attempting to determine why Carter disposed of the pump in the manner he did, and this bears directly on Iverson's credibility. Finally, Iverson offered no explanation as to why he failed to make any effort to retrieve the evidence which is the center of this controversy.
"Dismissal of the suit for failure to provide discovery is a drastic remedy, and before this Court can consider dismissal, it must find that Iverson was in some manner at fault for failure to provide discovery. Societe Internationale v. Rogers, 357 U.S. 197 [78 S.Ct. 1087, 2 L.Ed.2d...
