Payne v. Whitten
| Docket Number: | 2004-CA-01905-COA Linked Case(s): 2004-CT-01905-SCT ; 2004-CT-01905-SCT ; 2004-CT-01905-SCT ; 2004-CA-01905-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-07-2006 Opinion Author: Myers, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Untruthfulness of interrogatory answers - M.R.C.P. 37 Judge(s) Concurring: King, C.J., Chandler, Barnes and Ishee, JJ. Non Participating Judge(s): Southwick and Roberts, JJ. Dissenting Author : GRIFFIS, J. Dissent Joined By : LEE, P.J. AND IRVING, J. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 06-14-2004 Appealed from: Tate County Circuit Court Judge: Andrew C. Baker Disposition: JURY VERDICT FOUND APPELLANT 30% AT FAULT Case Number: CV2002-327-B/T |
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| Party Name: | Attorney Name: | |||
| Appellant: | Penelope Ann Payne |
GERALD W. CHATHAM |
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| Appellee: | Max D. Whitten | AMANDA BENEFIELD QUAVE, WILLIAM C. GRIFFIN, FRANCES R. SHIELDS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Untruthfulness of interrogatory answers - M.R.C.P. 37 |
| Summary of the Facts: | Penelope Payne was a passenger in Max Whitten’s truck when he drove the truck off the edge of the road causing it to roll approximately three times. As a result, Payne filed a complaint against Whitten. The jury returned a verdict with Whitten seventy percent at fault and Payne thirty percent at fault and awarding Payne damages in the amount of $20,000. Payne appeals. |
| Summary of Opinion Analysis: | Payne argues that the jury returned an inadequate verdict based upon the facts presented during trial. Whitten was called as an adverse witness by Payne at the trial. He testified that neither he nor Payne were wearing a seatbelt at the time of the accident, and when asked what Payne was doing prior to the accident he testified that Payne was not in her seat just prior to the accident. Whitten testified that he and Payne were kissing/necking a few seconds before the accident. Payne moved for a mistrial and sanctions on the grounds that Whitten did not mention this in either the interrogatories or at his deposition which the court denied. She now argues that the court should have granted a mistrial as a result of Whitten’s testimony which was allegedly different than his previous testimony during discovery, and that the court should have instructed the jury to disregard Whitten’s testimony concerning the cause of the accident. Dismissal is only authorized when a party wilfully or in bad faith fails to comply with the court’s order, and it is only proper in situations where the deterrent value of M.R.C.P. 37 cannot be achieved by a less drastic sanction. Another consideration is whether or not the other party’s preparation for trial was substantially prejudiced. Dismissal may not be appropriate when the neglect is attributable to the attorney, or when a party’s negligence is based upon confusion or sincere misunderstanding. Whitten did plead contributory negligence, in both his answer to the complaint and responses to interrogatories. In his answer, Whitten states that he was partially or even mostly at fault. However, Whitten never elaborates on his contributory negligence claim during discovery even though he was asked about his claim. Whitten waits until he is testifying at trial before he asserts that Payne was partially negligent as a result of her actions prior to the accident, and this testimony resulted in a discovery violation. The untruthfulness in Whitten’s interrogatories is sufficient to warrant a new trial. |
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