Thomas v. Fitch

• Decision Date: 18 December 1968
• Docket Number: No. 8819,8819
• Citation: 435 S.W.2d 703
• Parties: George THOMAS, Plaintiff-Appellant, v. Harold FITCH, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 703

435 S.W.2d 703

George THOMAS, Plaintiff-Appellant, v. Harold FITCH, Defendant-Respondent.

No. 8819.

Springfield Court of Appeals, Missouri.

Dec. 18, 1968.

Eugene E. Reeves, Ward & Reeves, Caruthersville, for appellant.

Stanley A. Grimm, Rader & Grimm, Cape Girardeau, for respondent.

TITUS, Judge.

A jury in the Circuit Court of Stoddard County returned its verdict in favor of defendant, thus denying plaintiff's claim that, through no fault of his own, defendant's negligence had produced the casualty in question and caused him $9,500 in damages. After plaintiff's motion for a new trial was overruled, he perfected this appeal.

The litigants agree the collision occurred the afternoon of November 17, 1967, when the right front corner of defendant's westbound Chevrolet struck the left rear corner of plaintiff's westbound Ford at or near a 'T' intersection on Highway 84 approximately 2/10ths of a mile west of Hayti, Missouri; that the highway is a two-laned bituminous surfaced east-west thoroughfare 24 feet wide, which was wet at the time of the accident; and that the stem of the 'T' intersection is a graveled roadway extending south from the highway. From this point on (tested by the recountings of the parties) their versions of what transpired are so divergent one might suspect the single incident involved was, in fact, two separate and distinct occurrences.

According to the plaintiff, he was driving west on the highway at 25 miles per hour and was being followed by defendant's automobile. 'I (overtook and) passed a car going west * * * and then (defendant overtook and) passed (the same car). When (defendant) passed him there was another car coming east, and (defendant) had to get in behind me (to avoid the oncoming eastbound car), and I looked in the (rear view) glass and (defendant) was kind of sliding crossways, and then he straightened up. Well, I tried to speed up to get out of (defendant's) way * * * but (defendant) couldn't miss me, he hit me right in the back end.' Plaintiff asserted his car was completely in the right lane at the time of impact. He denied his automobile had ever crossed the center line after overtaking and passing the westbound car, and further denied he had undertaken or intended to turn left at the intersection onto the roadway extending south from the highway.

By defendant's version, he had not encountered any eastbound traffic nor had he overtaken and passed any westbound vehicles between the time he left the Hayti city limits and the time of the collision. Defendant estimated he was driving 45 to 55 miles per hour and plaintiff 15 to 25 miles per hour. Plaintiff, according to defendant, was driving entirely in the right or north traffic lane as defendant moved into the left or south lane preparatory to passing the plaintiff's Ford, and 'as the front of my car approached the rear of (plaintiff's) vehicle, he pulled into the left-hand lane * * * more or less straddling the center line of the highway * * * and I honked my horn and applied my brakes, but I skidded into the rear left corner of his car.' Defendant testified the speed of plaintiff's automobile 'decreased somewhat' from the time he first started to pass and that no signal of any sort was given by plaintiff 'indicating a turn was going to be made.' Defendant estimated the impact occurred two or three feet left or south of the center line of the highway and five or ten feet, 'possibly more,' east of the east edge of the intersection. At the time of collision, defendant said, the left front tire of plaintiff's car was north of the center line while its left rear tire was two feet south of the center line of the highway.

On appeal plaintiff first contends the trial court erred in excluding the testimony of James Williams, a Negro, proffered as a witness by plaintiff. Defendant claimed surprise and objected to Williams testifying because plaintiff, when his deposition was taken thirteen days before trial, failed to reveal the identity of Mr. Williams as a person having knowledge of the accident. During the course of the deposition plaintiff was asked if he knew 'of any witnesses that were there at the scene of the accident that saw this accident take place,' and replied, 'I know a couple boys that was working right there on the side of the road, they say they seed it.' Inquiry was made as to the identity of these witnesses and plaintiff responded, 'I don't know their names, offhand. * * * I don't exactly know his name, I just know him when I see him.' The question, 'Are these Negroes that supposedly saw the accident?' elicited plaintiff's unqualified answer, 'No.' Defendant's counsel advised the trial judge an investigation had been made in 'the area' of the accident to ascertain if anyone living or working there had witnessed the collision, and the only one discovered was a Mr. Faulkner who subsequently testified for and corroborated defendant's version of the matter. Interrogated by the court outside the jury's presence, plaintiff testified the reporter who took the deposition 'put it (the 'No' answer) down wrong' because, 'Sure, I knowed they was Negroes.' Plaintiff acknowledged the other questions and answers in his deposition had been correctly recorded. Concerning the identity of Williams when the deposition was taken, plaintiff told the trial judge, 'I knew his name was Williams all (the) time, but I didn't know the other, I just knowed him by Williams.' Plaintiff also stated he had advised his lawyer concerning Williams' identity before the deposition was taken and of the fact that Williams had agreed to 'be a witness (and) tell what you know.'

Plaintiff concedes a trial court is vested with broad discretion to either admit or reject the testimony of a witness whose name, though known to the party, was not revealed to his adversary by answers to written interrogatories. ¹ Nevertheless plaintiff argues a trial court does not have the same discretionary authority to exclude a witness whose identity was not revealed 'during the heat of taking a deposition' as it does when the identity is not made known by answers to written interrogatories propounded under Rule 56. ² We do not agree.

Rule 61, 'Enforcement of Discovery by Parties,' enumerates the penalties a trial court 'may' impose upon a party who refuses to obey discovery orders, abstains from answering interrogatories, or wilfully fails to appear for a deposition after proper notice. Such punitory measures are designed to cope with patent floutings of the discovery rules, rather than with secretive violators whose misdeeds remain concealed until the cause is at trial. But a dearth of precise rules aimed at wily miscreants does not grant them license, through answers that evade and give short shrift to the truth, to foil and frustrate the courts in their office of dispensing justice, for if the rules of discovery are to be effective, it follows of necessity that appropriate sanctions be imposed for disobedience thereof. Combellick v. Rooks, Mo. (banc), 401 S.W.2d 460, 464. Rule 57 gives any party the right to 'take the testimony of any person, including a party, by deposition upon oral examination,' and provides, 'the deponent may be examined regarding any matter * * * including * * * the identity and location of persons having knowledge of relevant facts.' Written interrogatories, by Rule 56.01(a), 'may relate to any matters which can be inquired into under Rule 57.' Surely the rights conferred by Rules 57 and 56 would be sorely naked and unavailing if they could be enforced only against depondents or interrogatees who refuse to appear or answer, for false or evasive answers and answers. Yet, as seen by the authorities and as contemptuous of the rules as no answers at all. Neither Rule 61, nor any other rule for that matter, pointedly clothes the trial court with authority to exclude the testimony of a witness whose identity is not disclosed in answers to interrogatories or at a deposition, or to exclude the use of statements given by the interrogating party which were not returned with written answer. Yet, as seen by the authorities in footnote 1 and Combellick v. Rooks, supra, 401 S.W.2d at 464--465(10), courts do have the preoption to exclude the testimony of a witness not identified in interrogatory answers and discretionary power to prohibit use of the interrogator's statements omitted from answers to interrogatories. We cannot perceive any reason a trial court should not have the same discretion to enforce the sworn duty of a deposing party 'to testify the whole truth' (Rule 57.21; § 492.290), as it has to enforce the obligation of a party to 'fully in writing under oath' (Rule 56.01(a)) answer questions put by written interrogatories. Therefore, we rule that a trial court is invested with the same judicial discretion to exclude the testimony of a witness whose identity is improperly concealed at a deposition upon oral examination as it possesses to exclude the testimony of a witness not properly identified by answers to written interrogatories. Cf. Greenberg v. Karris, 80 Ill.App.2d 270, 225 N.E.2d 490, 492(3); Arkansas Valley Industries v. Giles, 241 Ark. 991, 411 S.W.2d 288, 290(5).

It is not our intent to imply by this holding, however, that a trial court should or must, in each instance, exclude the testimony of every witness whose name or identity is not disclosed by interrogatory answers or at depositions. Answers given in depositions and to interrogatories are not pleadings, 'and while in some circumstances the answers should have a limiting effect on the scope of proof at the trial, the trial court should be given a wide discretion to prevent the party propounding the interrogatories (or asking the questions at a deposition) from being misled and prejudiced and to protect the answering party against his own mistake or inadvertence.' Critcher v. Rudy Fick, Inc., Mo., 315 S.w,.2d 421, 429(11). The trial judge in this case used...