Opinion
June 12, 1978.
PRESENT: Bevilacqua, C.J., Paolino, Joslin, Kelleher and Doris, JJ.
1. PRETRIAL PROCEDURE. Prohibition Against Evidence After Failure to Amend Answers is Discretionary. Provision of rule that party who without good cause fails to amend answers to interrogatories as required may be prohibited from introducing evidence concerning any matter which ought to have been subject of amended answers is discretionary and ought not to be applied where to do so would block consideration of case on its underlying merits. Rules of Civil Procedure, rules 33(c), 37(d).
2. APPEAL AND ERROR. A Discretionary Ruling Will Not Be Reversed Without a Showing of Abuse. Ruling permitting testimony about customer's loss of earning capacity in suit for injuries sustained by customer in department store would not be disturbed on appeal on theory that such issue was not raised in answers to store owner's interrogatories, unless it could be shown that such ruling was improper exercise or abuse of discretion. Rules of Civil Procedure, rules 33(c), 37(d).
3. PRETRIAL PROCEDURE. No Abuse of Discretion Exists Where Defendant Has Notice of Claim. Where claim of lost earning capacity on part of injured customer was not specifically referred to in answers to interrogatories but defendant store owner had notice that customer's injury had limited her ability to secure gainful employment, owner knew or should have known that customer had diminished earning capacity despite failure to amend answers to interrogatories and thus permitting testimony about customer's loss of earning capacity was not abuse of discretion. Rules of Civil Procedure, rules 33(c), 37(d).
4. EVIDENCE. Spontaneous Utterance Is an Exception to Hearsay. Statement made by woman, believed to be a saleswoman, after free-standing clothing rack fell and struck her as she reached up to examine merchandise on it, that she knew that would happen and had "told the girl not to stack all those" items on one side was statement of fact rather than opinion and a spontaneous utterance made immediately after accident and thus qualified under res gestae exemption to hearsay rule in suit for injuries sustained in department store.
5. DAMAGES. Jurors May Arrive at Own Formulation of Injury-Related Expenses. Where evidence concerning issue of medical expenses allowed for questions in minds of jurors in suit for injuries sustained by customer in department store, jurors were free to accept all or part of evidence presented to them and arrive at their own formulation of injury-related medical expenses incurred by customer's husband, who prayed for $6,700 but was awarded only $3,200.
6. TRIAL. Evidence Not Barred May Be Used in Closing Argument. Since it was not error for evidence on customer's loss of earning capacity to be admitted in suit for injuries sustained by customer in department store, there was no rationale barring mention of issue in her counsel's closing argument to jury.
Suit was brought for injuries sustained by customer in department store. The Superior Court, Providence and Bristol Counties, McKiernan, J., entered judgments totaling $27,300 after jury verdict for plaintiffs, and defendant appealed. The Supreme Court, Paolino, J., held that: (1) where department store owner had at least constructive knowledge of claim of lost earning capacity on part of injured customer, permitting testimony of customer's loss of earning capacity was not abuse of discretion; (2) statement made by woman believed to be a saleswoman immediately following customer's fall was statement of fact rather than opinion and was spontaneous utterance made immediately after accident and thus qualified under res gestae exception to hearsay rule, and (3) since evidence concerning issue of medical expenses allowed for questions in minds of jurors, they were free to accept all or part of evidence presented and to arrive at their own formulation of expenses of customer's husband.
Appeal denied and dismissed and judgments affirmed.
John F. McBurney for plaintiffs.
Higgins, Cavanagh Cooney, John T. Walsh, Jr, for defendant.
This is an appeal by the defendant from judgments entered in Superior Court totaling $27,300 after a jury verdict for the plaintiffs. The plaintiffs, husband and wife, based their claims on personal injuries sustained by Helen Lacy in the defendant's department store. As grounds for this appeal, the defendant challenges evidentiary rulings and the denial of its motion for a new trial by the trial justice.
This sum represents the jury award of $18,200 plus interest as computed by the trial justice.
According to the testimony of plaintiffs, on November 8, 1969, they were shopping in the Peerless store in Providence when a free-standing clothing rack fell and struck Mrs. Lacy as she reached up to examine the merchandise on it. The rack, described by Wayne Lacy as having four arms, four legs and a main post and weighing between 75 and 100 pounds, hit Mrs. Lacy's shoulder and caused her to fall to the floor. She was then assisted by Mr. Lacy and a saleswoman. This account of the accident was not rebutted by any testimony offered by the defense.
At trial, defendant objected to the admission of certain evidence but its objections were overruled. The jury found in favor of plaintiffs. Mrs. Lacy was awarded $15,000 and Mr. Lacy $3,200. Judgments were entered for plaintiffs, and defendant filed a motion for a new trial which was denied. From the judgments and the denial of the motion for a new trial defendant now appeals.
The defendant's first claim of error is that the trial justice erred in permitting the introduction of evidence on Mrs. Lacy's claim of lost earning capacity and in instructing the jury on this claim. At the start of trial, the defense moved to strike that claim on the basis that Mrs. Lacy had not raised the issue in her answers to defendant's interrogatories. The defendant argues that plaintiff's failure to amend their interrogatory answers to include the claim of loss of earning capacity should have precluded testimony on this issue at trial because of surprise to defendant.
[1,2] Under Rule 33(c) of the Superior Court Rules of Civil Procedure, a party has a continuing duty to answer interrogatories when it receives information which renders prior answers incomplete. The aims of this provision are furthered by Rule 37(d) which provides that a party who without good cause fails to amend as required by 33(c) may be prohibited from introducing evidence concerning any matter which ought to have been the subject of amended answers. This provision, as our emphasis indicates, is discretionary and ought not to be applied where to do so would block a consideration of a case on its underlying merits. 1 Kent, R.I. Civ. Prac. § 33.12 at 276 (1969); Young v. Coca-Cola Bottling Co., 109 R.I. 458, 471, 287 A.2d 345, 352 (1972), citing 2A Barron Holtzoff, Federal Practice Procedure, § 778; Smith v. DeFusco, 107 R.I. 392, 398, 267 A.2d 725, 729 (1970). In the instant case, the trial justice permitted testimony about Mrs. Lacy's loss of earning capacity. This ruling will not be disturbed on appeal unless it can be shown that such ruling was an improper exercise or abuse of discretion. De Bartolo v. Di Battista, 117 R.I. 349, 353, 367 A.2d 701, 703 (1976); Berberian v. Travisono, 114 R.I. 269, 273-74, 332 A.2d 121, 124 (1975).
In this case, although plaintiffs did not specifically refer to the claim of lost earning capacity, defendant did have notice that Mrs. Lacy's injury had limited her ability to secure gainful employment. This notice could be gleaned from medical reports which referred to Mrs. Lacy's employment status and from her second deposition which included reference to her special training as a dance instructor. Thus, despite the failure of plaintiffs to amend certain answers to the interrogatories, defendant knew or should have known that Mrs. Lacy had diminished earning capacity. Where, as here, the opposing party has at least constructive knowledge of the issue to be raised, no abuse of discretion by the trial justice will be found. The defendant has failed to show that an abuse of the discretion under Rules 33(c) and 37(d) occurred.
The defendant next questions the admission of testimony of Mr. Lacy concerning statements made by a woman whom he believed to be a saleswoman immediately following Mrs. Lacy's fall. The statement in question was a statement of fact rather than opinion and was a spontaneous utterance made immediately after the accident. State v. Vaccaro, 111 R.I. 59, 62-63, 298 A.2d 788, 790 (1973); see O'Brien v. MP Theatres Corp., 71 R.I. 339, 346, 45 A.2d 171, 175 (1946). As such it qualified under the res gestae exception to the hearsay rule, and there was no abuse of discretion in its admission.
Mr. Lacy testified that the woman, who helped Mrs. Lacy right after her fall, had said,
"I knew that would happen. I told the girl not to stack all those [items] on one side."
and that she knew an accident would occur because a "new girl" had piled all the clothes on one side of the rack, and it was not balanced." Neither party asked this salesperson when on the stand if she had made such statements.
[5,6] Lastly the defendant claims error in denial of its motion for a new trial on the basis of a compromised jury verdict and/or improper final argument by the plaintiffs' counsel. While Mr. Lacy prayed for $6,700 for injury-related medical expenses, he was awarded only $3,200 by the jury verdict. Since evidence concerning the issue of medical expenses allowed for questions in the minds of the jurors, they were free, as was the trial justice in ruling on this motion, to accept all or part of the evidence presented to them and to arrive at their own formulation of Mr. Lacy's expenses in this area. No abuse of discretion has been shown in this denial of a new trial and we will not disturb it. See Tomasso v. DeMello, 118 R.I. 470, 374 A.2d 784, 786 (1977). Further, since it was not error for evidence on Mrs. Lacy's loss of earning capacity to be admitted, there is no rationale barring mention of this issue in her counsel's closing argument to the jury. The trial justice did not err in denying a motion for a new trial on this or any other grounds, and we find no merit to the defendant's argument on this issue.
The trial justice's instructions on loss of earning capacity were as follows:
"Now, there is a claim made by the plaintiff of a loss of earning capacity. There is a difference between loss of earning capacity and loss of earnings. If you are working at the time time you are injured and you are out for two or three weeks, then you lost two or three weeks' pay. But, if as a consequence of the incident, you were not working but you lost the ability to perform certain services, that is, you are unable following the accident to use your arm or to perform some task which you have an ability to perform, then that is a loss of earning capacity."
The defendant did not make a motion to pass the case at any time.
The appeal of the defendant is denied and dismissed, and the judgments appealed from are affirmed.
Mr. Justice Weisberger did not participate.