Thibaudeau v. Uglum , 653 P.2d 855 ( 1982 )

653 P.2d 855 (1982)

Frank Drew THIBAUDEAU, Plaintiff and Appellant,
v.
Robert Lawrence UGLUM, Defendant and Respondent.

No. 81-553.

Supreme Court of Montana.

Submitted on Briefs August 19, 1982. Decided November 17, 1982.

Regnier & Lewis, Stephen D. Roberts, Great Falls, for plaintiff and appellant.

Dzivi, Conklin & Nybo, William Conklin, Great Falls, for defendant and respondent.

HASWELL, Chief Justice.

In the Eighth Judicial District, Cascade County, plaintiff sued defendant for damages arising out of a car accident and a jury awarded plaintiff $1,088.55. Plaintiff appeals, claiming discovery abuse and error by the court in failing to direct a verdict on the issue of liability. We reverse and remand for a new trial.

On February 21, 1980, at about 2:15 p.m., plaintiff was traveling east on Third Avenue South in Great Falls approaching the uncontrolled intersection of Third Avenue South and 22nd Street. At the same time, defendant was approaching the same intersection traveling south on 22nd Street. The weather was clear and the streets were snowpacked and slippery. According to plaintiff, both vehicles entered the intersection at approximately the same time and the defendant failed to yield the right-of-way to plaintiff, who was on defendant's right. Plaintiff's left front fender struck defendant's right front fender and the vehicles slid, causing plaintiff's left rear fender to strike defendant's right rear fender.

Later that day, plaintiff went to the Great Falls office of defendant's insurance company and it appeared from the evidence at trial that plaintiff filled out a "Report of Facts" form while there. The form was unsigned and at trial plaintiff could not remember filling out the form himself although he also testified that it was his handwriting that appeared on both sides of the document. In the evening of February 21, 1980, plaintiff went to the emergency room of a Great Falls hospital for treatment of lower neck and head pain.

On April 11, 1980, plaintiff filed a complaint in District Court, generally alleging that defendant operated his vehicle in a negligent manner and seeking damages for medical costs, pain and suffering and loss of earnings. Defendant answered, raising as defenses the plaintiff's own negligence and assumption of risk.

On September 16, 1980, plaintiff propounded a set of interrogatories to defendant which included the following language (defendant's answers thereto are included):

"The information requested herein is not restricted to your personal knowledge, but includes information in the possession of your attorneys and extends to information which you or your attorneys can obtain upon reasonable inquiry. These interrogatories shall be deemed continuing so as to require supplemental answers to be filed promptly upon obtaining further information if you or your attorneys obtain such information between the time answers are served and the time of trial.

"...

"INTERROGATORY NO. 3: Have you at any time since the incident referred to plaintiff's Complaint, had or heard any discussion with the plaintiff or any of the plaintiff's agents concerning the same? If so, state:

"(a) The date, time and place where each such discussion took place;

"(b) The name and present address of each person present at said discussion;

"(c) Were any statements, written or otherwise, obtained from anyone, including you, who was interviewed or questioned on your behalf in connection with the incident described in the Complaint? If so, state:

"(1) The name and present address of each person giving such statement;

"(2) The dates upon which such statements were given;

"(3) The names and present addresses of all persons who have present custody of such statements.

"ANSWER: NO.

"(a) Not applicable.

"(b) Not applicable.

"(c) No.

"(1) Not applicable.

"(2) Not applicable.

"(3) Not applicable."

It can be seen from defendant's answers to these interrogatories that plaintiff's attorney was not furnished with the form that was filled out at defendant's insurance company's office.

At trial, plaintiff testified regarding the facts surrounding the accident, that his physical activities had been hampered somewhat as a result of the accident, and that he still had recurrent headaches. Defendant on cross-examination attempted to impeach plaintiff's testimony by using the information contained on the "Report of Facts" form. Plaintiff objected to the use of that information because he was unaware of the existence of the form, contending that it should have been supplied to him under the interrogatory request. Plaintiff's objection was overruled and defendant used information from the form to contradict plaintiff's earlier testimony and discovery statements regarding the speed of the vehicles and when plaintiff first saw defendant.

At the close of both parties' case-in-chief, plaintiff moved for a directed verdict in his favor on the issue of defendant's negligence, which was denied. After rebuttal testimony from both parties was received, the jury found plaintiff's total damages to be $1,814.25, and found plaintiff to be 40 percent negligent and the defendant 60 percent negligent. Accordingly, the judgment plaintiff received against defendant was reduced to $1,088.55.

Plaintiff appeals from that judgment and presents two issues for our consideration which can be stated as follows:

1. Did the trial court err in allowing defendant to cross-examine plaintiff about plaintiff's statements made on the "Report of Facts" form?

2. Did the trial court err in failing to direct a verdict in plaintiff's favor on the issue of liability?

Regarding the first issue, appellant argues that defendant's Exhibit No. 1 (the "Report of Facts" form) should have been produced in response to Interrogatory No. 3 and that the first time appellant was aware that such a statement had been given was at trial, on cross-examination of plaintiff. Appellant further argues that the resulting impeachment had a harmful effect on plaintiff's credibility before the jury as reflected in the small judgment and that, had the document been timely delivered, plaintiff could have refreshed his recollection about the details of the accident prior to trial.

Respondent contends that Interrogatory No. 3 should have been more clearly worded and that it was not clear that the exhibit was a statement executed by plaintiff. Respondent also contends that the effect of the exhibit on the jury was merely cumulative, since plaintiff had also been impeached by inconsistent statements given in an earlier deposition and in answers to interrogatories and by testimony of defense witnesses.

Plaintiff's statement, given to defendant's insurance company, clearly falls within the ambit of Interrogatory No. 3(c) as a written statement obtained from the plaintiff on defendant's behalf and it was error for the District Court to allow impeachment thereon. It is clear on the face of the document that it was filled out by plaintiff. On the top of the front page under the column entitled "You," plaintiff's name appears. The following statements also appear on the form:

"Who had the right of way? me Describe I was on his right

"...

"Did anyone receive a ticket? Yes Who? Mr. Uglum For what? Not giving me the right of way

"...

"Exactly what was said? Nothing we just called the police

"...

"Describe Accident: I was going East on my way home, at 2:10. We both tryed [sic] to stop but the roads were too icey [sic] and he was also going too fast for road conditions. he hit me in the middle of the intersection pushing me over to the right and then his rear end of his car hit mine "

Even a cursory examination of these responses on the form would have indicated that plaintiff filled it out or, at least directed someone else to fill it out, which would still qualify as a "statement" under the interrogatory language.

In his brief, respondent admits that he reviewed the insurance adjuster's entire file when answering the interrogatories and a more thorough examination thereof would have clearly revealed this exhibit. Nor are we persuaded by defendant's argument that the plaintiff was not "interviewed" or "questioned" in completing the form. The spirit of the Montana Rules of Civil Procedure requires broad disclosure of knowledge of the case on the part of all parties, Smith v. Babcock (1971), 157 Mont. 81, 482 P.2d 1014, and the result is the same whether the plaintiff was "interviewed," "questioned" or filled out defendant's insurance company's form, i.e., the defendant's insurance company obtained a statement about the accident from plaintiff.

Furthermore, at trial defense counsel admitted they realized that plaintiff had probably prepared the form as the following transcript shows:

"... I participated in the preparation of this case prior to trial, and participated in answering the interrogatories in question, and I want the record to show that I had no idea that Defendant's Exhibit No. 1 was, in fact, a statement prepared by the plaintiff, and Mr. Conklin, when entered this case, discovered that this document had, in fact, probably been prepared by the plaintiff ..." (Emphasis added.)

Because the interrogatories are, by their language, continuing, it was incumbent upon defense counsel to turn the document over to plaintiff at that time, also. Defense counsel were in violation of Rule 26(e)(2), M.R.Civ.P., which states:

"(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment."

We have held that reversal and a new trial may be had where interrogatories were not properly answered, Sanders v. Mt. Haggin Livestock Co. (1972), 160 Mont. 73, 500 P.2d 397.

In this regard, appellant requests that we instruct the trial court to assess reasonable damages pursuant to Rule 37(b), M.R.Civ.P., for defendant's failure to comply with discovery rules. However, Rule 37(b), M.R.Civ.P., relates to failure to comply with a court order compelling discovery, which did not occur here. Thus appellant's request is denied.

The focus of the second issue is whether the trial court should have directed a verdict in plaintiff's favor on the issue of liability. Appellant argues that this should have been done because both vehicles approached and entered the intersection at approximately the same time and plaintiff's vehicle was on the right of defendant's vehicle and thus had the right-of-way. Section 61-8-339(1), MCA, provides:

"Vehicle approaching or entering intersection. (1) When two vehicles enter or approach an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right."

Appellant also argues that DeVerniero v. Eby (1972), 159 Mont. 146, 496 P.2d 290, is controlling here. In DeVerniero plaintiff and defendant approached an uncontrolled intersection at approximately the same time and collided. Plaintiff was to the right of defendant. This Court found that plaintiff was not contributorily negligent as a matter of law and the jury verdict for defendant was reversed and a new trial ordered on the issue of damages.

Respondent contends that DeVerniero is factually distinguishable from the instant case and points out that DeVerniero was decided under the old contributory negligence law, rather than under the present comparative negligence statute. Even if we hold that a directed verdict on liability should have been granted, respondent contends there is no need for a remand because plaintiff's damages have already been fixed by the jury ($1,814.25).

The District Court was correct in refusing to grant a directed verdict in plaintiff's favor on the issue of liability. The right-of-way statute, section 61-8-339, MCA, supra, requires that the two vehicles enter or approach the intersection at approximately the same time. The defendant testified that the vehicles did not enter the intersection at approximately the same time and claims that he entered the intersection first. Other testimony, including that of the officer investigating the accident, indicated that the two vehicles did enter the intersection at approximately the same time.

This conflicting testimony raised a factual issue for the jury to decide as to whether defendant entered the intersection first (according him the right-of-way) or whether the vehicles approached or entered the intersection at approximately the same time (giving the right-of-way to plaintiff).

Another factual conflict for the jury's determination is whether the respective drivers kept the proper lookout. Defendant testified that he did not see plaintiff's vehicle until just before defendant entered the intersection. Plaintiff testified at trial that plaintiff was seventy feet from the intersection when he first saw defendant. However, in answers to interrogatories plaintiff stated that the distance was thirty feet and on Exhibit 1 the distance given was one car length. This evidence raised a jury question on whether each driver had maintained a proper lookout, thus preventing a directed verdict on the issue of liability.

A directed verdict may not be predicated on such conflicts of material fact.

Reversed and remanded.

SHEA, WEBER and MORRISON, JJ., concur.

SHEEHY, J., will file a special concurring opinion later (655 P.2d 219).