Sather v. Lindahl

• Court: Washington Supreme Court
• Writing for the Court: HILL; GRADY
• Citation: Sather v. Lindahl, 261 P.2d 682, 43 Wn.2d 463 (Wash. 1953)
• Decision Date: 09 October 1953
• Docket Number: No. 32567
• Parties: SATHER, v. LINDAHL et ux.

Page 463

43 Wn.2d 463

261 P.2d 682

SATHER, v. LINDAHL et ux.

No. 32567.

Supreme Court of Washington, Department 1.

Oct. 9, 1953.

Rehearing Denied Nov. 17, 1953.

James J. Keesling, Seattle, for appellant.

Martin & Shorts, Frank J. Conway, Seattle, for respondents.

HILL, Justice.

A new trial was granted in a personal injury action because the plaintiff had, when his deposition was taken four days before the trial, answered 'Not that I know of' in response to the question, 'Do you know of any witnesses to this accident?,' when, in fact, the plaintiff and his counsel did know of four eyewitnesses, whom they produced at the trial and who testified without objection.

The defendants, on cross-examination of these witnesses, developed the fact that they had been known to the plaintiff and his counsel. The defendants also impeached the plaintiff by showing that he had made a false answer in his deposition. The defendants, however, claimed no surprise, made no motion for a continuance, and asked no relief of any kind until after the jury had been instructed and the plaintiff's counsel had made his opening argument to the jury. At that juncture defendants' counsel moved for a mistrial because of the plaintiff's false answer in the deposition and the surprise in consequence thereof. The mistrial was denied. After a substantial verdict, the same circumstances were made the basis for the granting of a new trial. This appeal followed.

One of the purposes of the Rules of Pleading, Practice, and Procedure pertaining to pretrial discovery, including depositions, 34A Wash.2d 84, ff., is to enable a litigant to know in advance the witnesses upon whom his adversary is relying and thus to avoid surprise. When, after denying knowledge of witnesses which he in fact had, a litigant produces those witnesses at the trial, the adverse party should object to their being permitted to testify and, if they are permitted to testify, should move that their testimony be stricken. The trial judge can sustain such an objection and refuse to permit the witness to testify or can order his testimony stricken; or he can grant a continuance to give the surprised party an opportunity to investigate the witness and secure rebuttal testimony; and it is possible that, under circumstances in which no other relief or penalty could remedy the situation created by the deception, he could grant a mistrial.

Our rule comes verbatim from the Federal Rules of Civil Procedure, 28 U.S.C.A. No case has been cited from a Federal or state court in which a new trial was granted under circumstances such as are here presented. The cases relied upon by the respondents are of no assistance to them.

In Newsum v. Pennsylvania R. Co., D.C.1951, 97 F.Supp. 500, a new trial was granted because the verdict was excessive. What is there reported is the opinion of the trial judge granting a new trial. It appears that he had refused to permit two witnesses to testify whose names had been withheld from the plaintiff by the defendant. In giving the reason for granting a new trial, he indicated that, while he felt that he had ruled correctly in not permitting the surprise witnesses to testify, he was glad that one of the results of a new trial would be that the jury might have an opportunity to hear them. It is abundantly clear that the only question of concern to the trial judge in that case relative to the surprise witnesses was whether his refusal to permit them to testify had been too severe a penalty, as he had thereby prevented the jury from obtaining important evidence.

In Evtush v. Hudson Bus Transp. Co., 1951, 7 N.J. 167, 81 A.2d 6, 27 A.L.R.2d 731, a new trial was granted because the trial court had permitted the...