Zinn v. Tobin Packing Co., Inc.

• Court: Vermont Supreme Court
• Writing for the Court: Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and LARROW; BILLINGS
• Citation: Zinn v. Tobin Packing Co., Inc., 438 A.2d 1110, 140 Vt. 410 (Vt. 1981)
• Decision Date: 05 November 1981
• Docket Number: Nos. 350-78,423-80,s. 350-78
• Parties: Laurel ZINN, Administratrix of the Estate of Richard A. Zinn v. TOBIN PACKING COMPANY, INC. TOBIN PACKING COMPANY, INC. v. Laurel ZINN, Administratrix of the Estate of Richard A. Zinn.

Page 1110

438 A.2d 1110

140 Vt. 410

Laurel ZINN, Administratrix of the Estate of Richard A. Zinn v. TOBIN PACKING COMPANY, INC.

TOBIN PACKING COMPANY, INC. v. Laurel ZINN, Administratrix of the Estate of Richard A. Zinn.

Nos. 350-78, 423-80.

Supreme Court of Vermont.

Nov. 5, 1981.

Robert E. Manchester of Lisman & Lisman, Burlington, for plaintiff.

Richard A. Hull and Frank H. Zetelski of Dick, Hackel & Hull, Rutland, for defendant.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and LARROW, J. (Ret.), Specially Assigned.

BILLINGS, Justice.

These cases arise by reason of a complaint initially filed by the plaintiff-appellee Zinn against the defendant-appellant Tobin Packing Company (Tobin). Plaintiff Zinn, administratrix of the decedent's estate, sought damages for defendant Tobin's negligence arising out of a head-on collision on May 21, 1976, on U.S. Route 9 in Searsburg, Vermont. The collision was between a tractor and tank trailer owned by Merrill Transport Company and operated by the decedent Zinn and a tractor-trailer operated by the defendant Tobin's employee in which another employee was a passenger. The tractor-trailer trucks were going in opposite directions, travelling east and west, and the collision occurred in a curve near the lower portion of a long hill. Both drivers and the passenger were killed in the accident.

The jury, pursuant to the doctrine of comparative negligence, determined that the respective parties were fifty per cent negligent, and plaintiff Zinn obtained a judgment on September 12, 1978, against defendant Tobin for $250,000. 12 V.S.A. § 1036. From this judgment defendant Tobin appealed. In 1980, prior to argument, this Court remanded the cause to Bennington Superior Court for the limited purpose of entertaining defendant Tobin's motion for a new trial or other relief from judgment pursuant to V.R.C.P. 60(b) but retained jurisdiction of the appeal. Zinn v. Tobin Packing Co., 138 Vt. 635, 415 A.2d 762 (1980). The trial court denied defendant Tobin's motion for a new trial. Simultaneously, defendant Tobin commenced an independent action for a new trial on the basis of newly discovered evidence and for relief from the prior judgment. V.R.C.P. 60(b)(2). The trial court dismissed the independent action of defendant Tobin holding that the newly discovered evidence was inadmissible. Defendant Tobin appeals that order. The two appeals were heard together in this Court.

Defendant Tobin claims error in the original case in the reception of rebuttal evidence and the exclusion of surrebuttal evidence. One of the defendant's witnesses, although only an ear witness to the accident and not an eyewitness, was allowed to testify as to the noise the trucks made just prior to the accident. The witness testified that the noise was so loud she had to plug her ears, and that in her opinion, the louder the noise, the faster the speed of the vehicle. In rebuttal, the plaintiff sought to introduce testimony by an expert that, based on tests he made at the scene of the accident, there was no correlation between the loudness of a vehicle and its speed. The level of noise depended more on gearing than on speed.

The substance of this expert's testimony had not been disclosed to defendants until August 18, 1978, the trial having already been in progress since June 10, 1978. Defendant claims that the testimony should have been excluded because the plaintiff made thirteen sound tests between July 18, 1978, and August 1, 1978, and failed to seasonably supplement the defendant's interrogatories as required by V.R.C.P. 26(e). Rule 26(e) provides in pertinent part as follows:

A party is under a duty seasonably to supplement his response with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

V.R.C.P. 26(e)(1)(B) (emphasis added).

The rule is clear. The plaintiff had no duty to supplement the interrogatories until such time as she expected she would actually use such evidence in rebuttal. In most cases, it is difficult for a party to decide what evidence will be used in rebuttal until after the opposing party's case-in-chief has ended. In the case at bar the defendant rested on August 16, 1978. On August 18, 1978, the defendant learned of the testimony of the plaintiff's expert. This was a timely notification, and therefore the testimony should not have been excluded.

Moreover, the trial court has wide discretion in matters involving pretestimony disclosure after the commencement of a trial. 8 C. Wright & A. Miller, Federal Practice & Procedure § 2050, at 325-26 (1970). At the time the defendant was first surprised by the proposed testimony of the plaintiff's expert, defendant should have requested a continuance and failure to do so waived any rights based thereon. Meacham v. Kawasaki Motors Corp., 139 Vt. 44, 46, 421 A.2d 1299, 1300 (1980). On the record here there is no abuse of discretion especially in view of the fact that the trial court excluded all of the thirteen sound tests made by the expert and only allowed the witness to testify on a limited basis on sound and speed as it had done for the defendant's ear witness.

Defendant claims that the trial court erred in preventing surrebuttal, but, in view of the plaintiff's expert testimony being limited and the exclusion of all testing data, there was nothing to surrebut. The testimony of the defendant's witness would have been repetitious and not within the scope of rebuttal. No error appears. At best, any passing reference to the sound testing data was de minimis, and, as has been often stated, the parties are entitled to a fair, but not necessarily perfect, trial.

In April 1980, the defendant discovered, more than one and...