Payne v. Whitten
| Docket Number: | 2004-CT-01905-SCT Linked Case(s): 2004-CA-01905-COA ; 2004-CT-01905-SCT ; 2004-CT-01905-SCT ; 2004-CA-01905-COA |
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| Supreme Court: | Opinion Link Opinion Date: 02-15-2007 Opinion Author: SMITH, C.J. Holding: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, |
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| Additional Case Information: |
Topic: Personal injury - Discovery violation - M.R.C.P. 37(e) - M.R.E. 607 - M.R.C.P. 33(a) Judge(s) Concurring: WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ. Non Participating Judge(s): COBB, P.J., AND GRAVES, J. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY Writ of Certiorari: Yes Appealed from Court of Appeals |
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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 returned a verdict in favor of Payne, however, found her contributorily negligent. Judgment was entered for Payne with the amount of damages totaling $20,000 Case Number: CV2002-327-B/T |
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| Note: | On Motion for Rehearing - Original Opinion withdrawn, & this opinion substituted therefor | |
| Party Name: | Attorney Name: | |||
| Appellant: | PENELOPE ANN PAYNE |
GERALD W. CHATHAM, SR. |
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| Appellee: | MAX D. WHITTEN | FRANCES R. SHIELDS AMANDA B. QUAVE WILLIAM C. GRIFFIN |
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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 - Discovery violation - M.R.C.P. 37(e) - M.R.E. 607 - M.R.C.P. 33(a) |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. Penelope Payne sued Max Whitten for injuries she received in a one-car accident in Tate County. In his answer, Whitten raised as an affirmative defense Payne’s contributory negligence. During the trial, Whitten for the first time provided testimony to support this defense, i.e., that Payne had been on his side of the truck kissing him just before the accident occurred. Payne’s attorney requested a mistrial or other sanction, arguing Whitten’s testimony violated the rules of discovery. The judge denied relief. The jury returned a verdict in favor of Payne, but found her guilty of contributory negligence and assigned her thirty percent of fault. In accordance with the jury’s verdict judgment was entered for Payne for $20,000. The Court of Appeals reversed the judgment of the trial court and remanded the case for a new trial. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Payne argued that Whitten’s trial testimony caused total and complete prejudice due to his surprise revelation of a cause of the accident in light of his evasive or incomplete answers to interrogatory and deposition questions. Payne relies on M.R.C.P. 37(e). However, Payne’s reliance on Rule 37(e) for relief is misplaced. This issue is properly resolved as an evidentiary issue under M.R.E. 607, which governs the impeachment of testimony. Whitten notified Payne of a contributory negligence defense in his Answer to the Complaint by way of two separate affirmative defenses. Whitten clearly identified Payne as a contributing cause of the accident when he stated: “The Plaintiff was partially at fault in causing the accident in question and her resulting alleged damages.” Interrogatory No. 10 asked first, how the accident occurred and second, the basis of any claim of a contributing cause, clearly violating M.R.C.P. 33(a), which restricts interrogatories to a single question. Whitten’s response to Interrogatory No. 10 addressed the first question “how the accident occurred” but failed to address any basis for his contributory negligence defense. Payne did not pursue Whitten’s contributory negligence defense beyond this interrogatory. At his deposition, Whitten was never asked about contributory negligence. Whitten was cross-examined extensively about his previous statements in which he had never mentioned that Payne was kissing him. Payne was still available to testify as to whether she had not been kissing Whitten at the time of the accident. Further, Whitten’s attorney never questioned Payne about the kissing episode during her cross examination of Payne. Also, Payne’s attorney disputed the kissing allegation at much length during his closing argument. Therefore, the trial judge did not abuse his discretion by denying Payne a mistrial or other relief for Whitten’s discovery violations. |
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