Zolber v. Winters

SHEPARD, Justice.

This is an appeal from a denial of a motion for judgment notwithstanding the verdict or a new trial following a jury trial and verdict in favor of Clayton Zolber, cross claimant-respondent. We affirm in part, reverse in part, and remand for a new trial only on the issue of damages.

U.S. Highway 12 runs eastward through a portion of Idaho to the Idaho-Montana state line. A roadside cafe, the Syringa Cafe, is located beside U.S. Highway 12. On a day in November 1978, cross defendant-appellant Winters had parked a truck and two trailer combination in the cafe parking lot. He intended to enter U.S. Highway 12 and proceed easterly. He made a left turn from the parking lot onto the easterly lane of Highway 12. Two other trucks had preceded Winters from the parking lot and were traveling east on U.S. Highway 12. Some distance east of the cafe is the crest of an incline in U.S. Highway 12. At that same time, cross claimant-respondent Zolber was driving a truck in a westerly direction approaching the Syringa Cafe. As Zolber drove over the crest of the incline in the road, he saw Winters’ truck, one-third of which was still in the westbound lane. Zolber, apparently unable to stop his vehicle, went off the road, through a ditch, across the parking lot, and struck a truck owned by Donald Denton. There was no contact between the Zolber and Winters’ trucks.

Denton brought suit against Zolber, Winters, and Builders Transport, to recover for damages to his truck. The parties settled with Denton and trial was held on the cross claim of Zolber for the damages he sustained in the accident.

At trial, Zolber contended that the two trucks which had preceded Winters out of the cafe parking lot had obstructed Zolber’s view of Winters’ truck until Zolber was too close to Winters’ truck to be able to stop. Winters argued at trial that the two preceding trucks supposedly obstructing Zolber’s view were far enough eastward on Highway 12 to be of no obstruction to the view and that Zolber could have and should have seen Winters’ truck on the highway, and that Winters was entitled to rely upon the ability of Zolber to slow or stop his truck.

The jury verdict was split nine to three in favor of Zolber. Zolber’s damages were assessed at $400,000. Zolber was found to have been 39% negligent. Defendants moved for a judgment n.o.v., or in the alternative for a new trial, which motion was denied.

Appellants first contend that the district court erred in refusing to give their Requested Instruction No. 20, which reads:

“ ‘DEFENDANTS REQUESTED INSTRUCTION NO. 20

“You have been instructed as to the provisions of Idaho Code § 49-644 in effect at the time of this accident provided that:

‘The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.’

“With regard to this statute, you are further instructed that when one has lawfully gained entry upon the highway from another roadway, vehicles approaching in the interim period between commencement and completion of the crossing would be under a duty to either slow or stop to avoid a collision.” (Emphasis added.)

Rather, the court first instructed the jury as to the provisions of I.C. § 49-644, and then instructed:

“You are instructed that when one has entered a highway in compliance with the law and in a non-negligent fashion, drivers approaching in the interim period between commencement and completion of the entry, are required to exercise ordinary care for the safety of all.” (Emphasis added.).

It is clear that on appeal, instructions must be. viewed as a whole to determine whether the jury was properly and adequately instructed. Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967). If the court’s instructions, considered as a whole, fairly and adequately present the issues and state the applicable law, no error is committed. Pacific Northwest Pipeline Corp. v. Waller, 80 Idaho 105, 326 P.2d 388 (1958); Union Seed Co. of Burley v. Savage, 76 Idaho 432, 283 P.2d 918 (1955).

Appellants argue that under I.C. § 49-644 Zolber was required by law to operate his truck at a safe and appropriate speed given the hazards which may exist as to pedestrians or other traffic or weather or highway conditions. They further assert that Winters, after determining that there were no approaching vehicles in view, was entitled to enter the highway in reliance upon the duty of Zolber to slow or stop to avoid an accident. Therein appellants rely upon Reed v. Green, 90 Idaho 526, 535, 414 P.2d 445, 450 (1966), which states:

“With no approaching vehicles in view, Green had the right to commence crossing the highway at the time he did. The distance of his unobstructed view was such that it cannot be said he was negligent. In crossing the highway under these circumstances, he was fully complying with the law. After once lawfully gaining entry upon the highway, vehicles approaching in the interim period between commencement and completion of the crossing were under the duty either to slow down or stop.” (Citations omitted.)

Therefrom, appellants argue that Reed requires drivers of approaching vehicles, as was Zolber, not only to exercise ordinary care but specifically to either slow or stop to avoid a collision.

As stated in Davis v. Bushnell, 93 Idaho at 531, 465 P.2d at 655:

“We do not agree that the court’s instruction set out above requires a higher degree or standard of care than ordinary care. There is no inconsistency between I.C. § 49-735 and the instruction of the court. Both require a standard of due care dependent upon the particular facts then existing. Ordinary and due care may mean different conduct under different circumstances. A driver must, for example, exercise due care when driving in a blinding snowstorm with an extremely slippery highway and also exercise due care when driving in sunny weather on clear and dry pavement. However, it cannot be said that conduct which constitutes due care under the one situation would also be due care under the other. That standard is no different when applied to the case at bar. The instruction as given by the court was a clear and correct statement of the law and did not constitute error.”

We hold that the jury instruction in the instant case was correct in the utilization of the ordinary care standard. As stated in Holland v. Peterson, 95 Idaho 728, 731, 518 P.2d 1190, 1193 (1974):

“Although appellants requested instruction is a correct general statement of the law, Coughran v. Hickox, 82 Idaho 18, 348 P.2d 724 (1960), the court did not err in refusing to give it since it adequately covered the same subject matter in its instructions on negligence____ For the court to have given appellant’s requested instruction would have added nothing new to the case and would merely have been redundant.”

Appellants next assert error by the trial court in admitting, over objection, certain photographs and a videotape. The photographs and videotape were introduced during the testimony of a reconstruction expert. They were taken in November 1983, some five years after the accident, and were offered to illustrate the impact on the forward visibility of Mr. Zolber of the other vehicles in the oncoming lane of traffic.

Admittedly, the photographs and the videotape were posed and at variance with some of the circumstances existing at the time of the accident. Nevertheless, we hold that they were admissible under the standard of State v. Marlar, 94 Idaho 803, 809, 498 P.2d 1276, 1282 (1972):

“Relevancy as defined in the Idaho cases, encompasses two main aspects. The first, traditionally denominated ‘materiality,’ requires that the issue for which the specific evidence is offered to prove be a material issue in the case. The second aspect of relevancy concerns the probative value of the offered evidence. Evidence offered to prove a material issue in the case is not relevant unless it logically tends to prove or disprove that issue. G. Bell, Handbook of Evidence for the Idaho Lawyer, 101-02 (1957); McCormick, [Law of Evidence] at 314-15 [1954].”

As the court stated in State v. Kleier, 69 Idaho 278, 286, 206 P.2d 513, 518 (1949):

“Photographs and pictures relevant to describe a person, place or thing are admissible for the purpose of explaining and applying the evidence and assisting the jury in understanding the case. Such evidence is used to clarify and present a more comprehensive explanation of the physical facts than could be obtained from the testimony of the witnesses.

“Where photographs are used to throw light on the issues and surrounding circumstances, such photographs are properly admitted.” (Citations omitted.)

Appellants assert that the exhibits were prejudicial in that they did not fairly and accurately represent the conditions as seen by the witness and that there was substantial variance from the circumstances existing at the time of the accident. It is established that the use of exhibits by a testifying witness in order to supplement or illustrate events is proper insofar as the differences between the events depicted and the events observed are explained by the witness and the exhibit is not deceptive. McKee v. Chase, 73 Idaho 491, 253 P.2d 787 (1953). As explained by the Montana court in Brown v. North American Manufacturing Co., 176 Mont. 98, 576 P.2d 711, 722 (1978) (overruled on other grounds, Zahrte v. Sturm, Ruger & Co., 661 P.2d 17 (Mont.1983)):

“Particularly as regards movies of reconstructions, it has been held that such movies are admissible if shown to be accurate and relevant, and any change in conditions is adequately explained.” (Citations omitted.)

Finally, it is established that the admission of exhibits such as this type is largely a discretionary matter with the trial judge and absent any showing of abuse of that discretion, the exhibits will be deemed to be properly admitted. State v. Richardson, 76 Idaho 9, 277 P.2d 272 (1954). We find no such abuse of discretion.

Appellants also argue error in a series of events which culminated during trial in the court refusing to admit appellants’ exhibit No. 1, which consisted of medical reports of Zolber’s treating and evaluating physicians. Appellants assert that these reports minimize Zolber’s claim for damages to only $37,000, impeached the credibility of Zolber and his wife regarding the pre-existing condition of Zolber’s hearing loss and indicate the existence of a previous disabling injury. It is asserted that Zolber’s counsel, in response to interrogatories, stated that a medical witness who would testify would rely on those medical reports, and that they would be introduced at that time.

In advance of trial, written interrogatories were submitted by defendants asking what witnesses were to be called by Zolber and the nature and extent of their testimony. Answers thereto were dated November 16, 1983, and stated:

“Dr. Bathurst additionally will rely on all other medical reports that have been taken in this matter forming an opinion as to the extent of the disability created by this injury and whether said disability more likely than not arose from the truck accident.”

The answers to the interrogatories further stated that “[a]ll medical reports of which the defendant has copy’’ would be produced as exhibits at trial.

Dr. Bathurst, the anticipated medical witness for trial, was0not one of Zolber’s treating physicians following the accident and, in fact, Bathurst first saw Zolber four and a half years after the accident. Appellants argue that it was extremely important for them to know whether Dr. Bathurst would at trial be relying upon the reports of the original treating physicians of Zolber, which allegedly denigrated Zolber’s claim for damages. They argue that it was also important for them to know if those medical reports would be introduced, since they would rely heavily on them in their cross examination of Dr. Bathurst.

Upon receipt of the answers to interrogatories, Winters’ counsel wrote to Zolber’s counsel, on November 23, 1983:

“Your responses to my interrogatories would indicate that the only medical testimony that you intend to produce is that of Dr. Bathurst. I do not have a copy of any report of his examination of the plaintiff and/or knowledge of when and what treatment he rendered the plaintiff. If you have such, I would appreciate your submission of the same to me at this time. You also indicate that his testimony ‘will rely on all other medical reports that have been taken in this matter’ and I assume that you are referring to the medical reports that you have submitted to me of other doctors who examined or rendered assistance to Mr. Zolber. If I am incorrect in the assumption as to Dr. Bathurst being the only witness or reliance on the reports, please advise.”

Zolber’s counsel did not respond to that letter and Dr. Bathurst’s report, which was dated November 22, 1983, was not submitted to Winters’ counsel until the second day of trial, nearly four months later.

When Dr. Bathurst was called to testify at trial, he stated that he had never received the medical reports of the attending and treating physicians, that they were not a part of his file, and that he had not reviewed those medical reports, and that his testimony was not based on those earlier reports of the other doctors. Zolber did not attempt to introduce those other three medical reports and when the defense attempted to introduce those three medical reports, Zolber’s counsel objected to their admission on the basis of a lack of foundation. That objection was sustained by the district court.

Appellants assert, and we agree, that they had the right to accept the answers to the interrogatories as true. Branch v. Emery Transportation Co., 53 N.J.Super. 367, 147 A.2d 556 (1958). Branch was a personal injury action in which plaintiffs were permitted to testify concerning injuries different from those which they specified in their answers to interrogatories. Plaintiffs there argued no error because the defendants did not avail themselves of the opportunity to have a physical examination made of plaintiffs pri- or to trial. The court there stated:

“That defendants did not avail themselves of a pretrial physical examination of the parties cannot operate to bar their claim of surprise and prejudice or reduce the effect of the prejudice. We cannot conclude that defendants did not rely on these answers. It is not essential to a showing of reliance upon answers to interrogatories which are descriptive of physical injuries that the interrogator take advantage of permissive pretrial procedure in order to obtain an independent medical examination of plaintiff for the purpose of confirmation or contradiction of such purported injuries. Nor is it necessary that the propounder of the interrogatories be prepared to adduce medical testimony of the physical conditions revealed by the answers to interrogatories. Defendants are under no duty to ascertain before trial whether the answers are in fact true. A party may accept the answers given as a true statement of the knowledge of the deponent at the time the questions were answered. They may rely upon the anticipated testimony as revealed by such answers and foreswear either further pretrial physical examination or production of independent medical testimony at the trial. The facts of each case must be separately analyzed to determine whether there was not only reliance but also surprise and prejudice in order to determine whether sanctions should have been imposed which would limit the proof to the facts disclosed by the answers to interrogatories.” Id. 147 A.2d at 562.

Appellants also contend that Zolber’s counsel not only failed to clarify his interrogatories, but failed to supplement the interrogatories as required by I.R.C.P. 26(e), which provides:

“Rule 26(e). Supplementation of responses—

******

“(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.”

Clearly, the rule is applicable in the present case. See Labadie Coal Co. v. Black, 672 F.2d 92 (D.C.Cir.1982); Shelak v. White Motor Co., 581 F.2d 1155 (5th Cir.1978). In Shelak, a personal injury action, plaintiff answered an interrogatory stating that the only injuries he sustained were back injuries, but'on the eve of trial, defendant learned for the first time that plaintiff was also claiming that the accident caused plaintiff to suffer a heart attack. Reversing in part, the court stated that since plaintiff never supplemented his responses to include the accident-related heart attack, he violated basic principles of discovery in attempting to present a case at trial substantially different than that revealed in discovery proceedings.

We hold that the ability of defendants-appellants to present their case was substantially prejudiced by the failure of Zolber to supplement and/or clarify his answers to the interrogatories concerning the expected testimony of his expert witness and the introduction of the medical reports of the previous attending and treating physicians.

The rulings of the trial court relating to the instructions and the admission of the photographic and videotape exhibits are affirmed. The order of the trial court denying the motion for a new trial is reversed only as it relates to the issue of damages and the cause is remanded for a new trial on the damage issue.

Costs to appellant. No attorney fees on appeal.

DONALDSON, C.J., and BAKES, J. concur. HUNTLEY, J., concurs in the separate opinion of BISTLINE, J.