JOHNSON v Y M C A

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No. 81-299 I N TIiE SUPREI4E COURT OF THE STATE OF ElOlJTANA 1982 DENNIS L. JOHNSON, G u a r d i a n Ad L i t e m f o r MARK L. JOHNSON, a n i n f a n t , P l a i n t i f f and A p p e l l a n t , YOUNG plBN ' S CHRISITAN ASSOCIATION O F GREAT FALLS, Defendant and Respondent. D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t , A p p e a l from: I n a n d f o r t h e C o u n t y o f C a s c a d e , The H o n o r a b l e J o h n M. M c C a r v e l , J u d g e p r e s i d i n q . Counsel of Record: For Appellant: Eoward F. Strause, Great F a l l s , Montana F o r Respondenk : S m i t h , B a i l l i e & Walsh, G r e a t F a l l s , Montana Submitted: Decided: Filed: 2~-( _ I September 20, 1982 O c t o b e r 6 , 1982 Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff sued the Great Falls YMCA for negligence after his son swimming pool. Mark was found submerged in defendant's A jury returned a verdict for defendant, and plaintiff appeals. We affirm. At the outset, we note that appellant's brief does not contain a separate statement of issues presented for review, as required by Rule 23(a)(2), M.R.App.Civ.P., which makes our ferreting out appellant's arguments a more difficult and time-consuming task. Counsel are admonished to conform their briefs to Rules 23 through 27, M.R.App.Civ.P. In May 1977 Mark brought home from his school one of defendant's brochures. In this brochure was a description of the "Summer Action Club" which was advertised "safe, well-supervised and inexpensive." Upon payment of the required fee, Mark, age six, was enrolled in the Club and his particular class was to run from June 27, 1977, to July 1, 1977. A day's activities in the Club usually concluded with a "free swim" period in defendant's indoor pool, where there was no formal instruction but instruction was occasionally given. individual informal The shallow and deep parts of the pool were divided by a rope. Pam Boyle, a certified senior lifeguard at the YMCA, gave Mark instructions on how to swim so that he was able to dog-paddle the width of the pool without assistance. On June 30, 1977, the Summer Action Club members had the usual "free swim" period at the end of the day. There were not more than twenty-five people in the pool at this time and attendant at the pool were five counselors, including Boyle and another senior lifeguard. All five were qualified in lifesaving. The f a c t s s u r r o u n d i n g M a r k ' s s u b m e r s i o n i n t h e w a t e r are in dispute. M i s s y B l a i s , o n e of t h e j u n i o r c o u n s e l o r s , s t a t e d by a f f i d a v i t t h a t s h e n o t i c e d Mark p l a y i n g w i t h two o t h e r b o y s and h a n g i n g o n t o t h e e d g e o f t h e p o o l a b o u t two f e e t f r o m t h e d i v i d i n g r o p e , on t h e d e e p end s i d e . A short time l a t e r s h e was summoned by o n e of t h e two b o y s who t o l d h e r t h a t t h e y had b e e n p l a y i n g w i t h Mark b u t h e had n o t come up y e t . However, t h e r e was o t h e r t e s t i m o n y i n d i c a t i n g t h a t Mark had b e e n r u n n i n g a n d h a d f a l l e n i n . found water, Mark submerged in about four A t any r a t e , B l a i s and one-half f e e t of s i x t o e i g h t i n c h e s from t h e bottom o f t h e p o o l and d r i f t i n g towards t h e middle of t h e pool. B l a i s and a boy p u l l e d Mark f r o m u n d e r t h e w a t e r a n d yelled for help. What h a p p e n e d n e x t is a l s o i n d i s p u t e . B l a i s c l a i m e d s h e c a r r i e d Mark t o t h e e d g e o f t h e p o o l and t h a t Nark was g i v e n no mouth-to-mouth resuscitation while i n B o y l e , on t h e o t h e r h a n d , t e s t i f i e d t h a t s h e m e t the water. B l a i s i n t h e w a t e r c a r r y i n g Mark, g r a b b e d Mark by t h e h a i r and swam t o t h e s i d e o f t h e p o o l . that, while b r e a t h s of vomited. still air, After in the water, using Boyle f u r t h e r t e s t i f i e d s h e g a v e Mark artificial resuscitation, c l e a r i n g h i s mouth o u t , more q u i c k b r e a t h s , two q u i c k and h e v o m i t e d again. and Mark s h e g a v e him two Mark was t h e n l i f t e d o u t o f t h e w a t e r where c a r d i o - p u l m i n a r y r e s u s c i t a t i o n was a d m i n i s t e r e d u n t i l a m b u l a n c e p e r s o n n e l a r r i v e d . t h e ambulance p e r s o n n e l One o f ( C h e r e w a t e n k o ) t e s t i f i e d t h a t when h e a r r i v e d Mark was u n c o n s c i o u s b u t was b r e a t h i n g and had a weak p u l s e . stayed for Mark was t h e n t a k e n t o t h e h o s p i t a l w h e r e h e four days, two of which were for observation purposes. On April 14, 1978, plaintiff filed a complaint alleging that defendant was negligent in the care and supervision of Mark. Defendant answered, denying the negligence allegations generally and contending that defendant had exercised ordinary care in supervising and assisting Mark when he became endangered. The parties exchanged numerous submitted pretrial memoranda. interrogatories and Plaintiff's motion for summary judgment on the issue of liability was denied. At trial, one of the major issues was the length of time Mark was under water. The trial judge admitted, over plaintiff's objection, Boyle's testimony regarding an experiment performed by her thirty minutes after the incident. In this experiment, she threw a diving ring into the pool at the location where Mark was recovered and timed how long it took two young boys (one of whom had helped pull Mark from under the water) to retrieve it. Boyle concluded from this ex- periment that Mark was under water for about thirty seconds or at the maximum, one to one and one-half minutes. A tenpound diving weight was also thrown in so that it settled near the drain in the pool, and the boys were unable to retrieve it. From this, Boyle concluded that Mark was not on the bottom of the pool when rescued. During the trial, plaintiff called psychologists to testify that Mark had a learning disability proximately caused by the lack of oxygen during his submersion in the water. Defendant called the treating physician who testi- fied that no brain damage had occurred. After receiving the judge's instructions, which included statements addressing t h e p ro p e r s t a n d a r d of c a r e , t h e j u r y r e t u r n e d a v e r d i c t f o r the defendant. Plaintiff's motion for a new trial was d e n i e d , and p l a i n t i f f a p p e a l s . The f o l l o w i n g i s s u e s a r e r a i s e d on a p p e a l : Whether 1. t h e D i s t r i c t Court erroneously admitted t h e testimony regarding t h e diving r i n g experiment; Whether 2. because of plaintiff newly d i s c o v e r e d is entitled evidence or to a new b e c a u s e of trial defen- d a n t ' s a b u s e of p r e t r i a l d i s c o v e r y ; 3. Whether t h e D i s t r i c t C o u r t e r r o n e o u s l y i n s t r u c t e d t h e j u r y on t h e p r o p e r s t a n d a r d o f c a r e ; a n d 4. Whether the District Court erred in failing to g r a n t p l a i n t i f f ' s m o t i o n f o r summary judgment on t h e i s s u e of l i a b i l i t y . Initially, appellant argues that Boyle's testimony r e g a r d i n g t h e d i v i n g r i n g e x p e r i m e n t was i m p r o p e r l y a d m i t t e d because similar" the test was conditions. not conducted Appellant under further "substantially argues that Boyle was n o t q u a l i f i e d a s a n e x p e r t t o compare t h e d i f f e r e n c e s b e t w e e n how a human body would r e a c t i n w a t e r a s o p p o s e d t o the diving ring. R e s p o n d e n t c o u n t e r s t h a t a s u f f i c i e n t f o u n d a t i o n was l a i d and r e l i e s on H u r l y v. 1 4 1 Mont. 1 7 6 , 376 P.2d 504. Star Transfer Company (1962), I n H u r l y , we s t a t e d t h a t t h e t r i a l c o u r t h a s d i s c r e t i o n on w h e t h e r t o a d m i t e v i d e n c e o f an experiment and substantial s i m i l a r i t y of conditions between t h e e x p e r i m e n t and t h e a c t u a l i n c i d e n t i s a l l t h a t is necessary. The t e s t i m o n y r e g a r d i n g t h e d i v i n g r i n g e x p e r i m e n t was properly admitted. This evidence supported the conclusion t h a t i t took one t o o n e and one-half v i c t i m from t h e pool. c u r r e d i n view of minutes t o r e t r i e v e t h e T h u s , no b r a i n damage c o u l d h a v e o c - one d o c t o r ' s expert testimony t h a t for b r a i n damage t o o c c u r t h e v i c t i m m u s t b e d e p r i v e d o f o x y g e n for three to four minutes. Moreover, another doctor t e s t i f i e d t h a t l a c k o f oxygen f o r f i v e m i n u t e s i s r e q u i r e d b e f o r e b r a i n damage o c c u r s . Also, t h e circumstances of substantially Boyle ' s similar testimony. so as The to t h e e x p e r i m e n t h e r e were allow experiment the was admission conducted of thirty m i n u t e s a f t e r t h e i n c i d e n t and i n v o l v e d t h e same boy who had A l t h o u g h it is o b v i o u s h e l p e d p u l l Mark o u t o f t h e w a t e r . t h a t a d i v i n g r i n g o r d i v i n g weight has d i f f e r e n t dimensions t h a n a s m a l l b o y ' s body, t h i s e v i d e n c e was p r o b a t i v e t o p r o v i d e t h e f a c t f i n d e r w i t h a n i n d i c a t i o n o f t h e time i n v o l v e d i n e f f e c t i n g t h e rescue. The t r i a l j u d g e d i d n o t a b u s e h i s d i s c r e t i o n i n allowing evidence of t h e experiment. S e e a l s o , Hanson v. supra. 93 I d a h o 3 1 4 , 460 P.2d Howard 0 . M i l l e r , Hurly, Inc. (1969), 739 ( a d m i s s i o n o f a b r a k i n g e x p e r i - ment o f a d i f f e r e n t k i n d o f c a r t h a n t h a t i n v o l v e d i n t h e accident was left to the sound discretion of the trial court). Appellant n e x t argues t h a t he t r i a l because of four to a new newly d i s c o v e r e d e v i d e n c e and d e f e n d a n t ' s p r e t r i a l discovery abuses. abuse, is e n t i t l e d Regarding t h e p r e t r i a l d i s c o v e r y a p p e l l a n t a r g u e s t h a t d e f e n d a n t was a l l o w e d t o add new Boyle. Boyle's witnesses According the to whereabouts defendant describing day before appellant, (from an the the defense undated incident) trial, counsel letter but including knew of received by failed to inform plaintiff of her addrsss in violation of defendant's duty to supplement its interrogatory answers. Respondent admits that it did not provide Boyle's Nebraska address to plaintiff but contends that it would have been a useless act because the address was outdated and would not have led to contact with Boyle anyway. Respondent argues that it had received a phone call that Boyle had come to Great Falls on her own during her 1980 Christmas vacation (the trial started January 7, 1981) and this was the first time that defendant knew of Boyle's whereabouts. also claims that appellant abused Respondent the discovery process because ambulance employee Cherewatenko was never identified in interrogatory answers as being an expert, was never identified in appellant's pretrial memorandum as being a witness, and Cherewatenko would defense counsel. not discuss the case with Cherewatenko later testified as an expert in the case. Neither counsel's action in this regard is commendable as both were lax in keeping the other party informed of pretrial developments and in supplementing answers to interrogatories. The District Court did not commit reversible error by allowing Boyle to testify. Appellant strenuously objected to her testimony because she was going to testify that Mark could swim whereas appellant had previously been under the impression that he could not. However, Boyle was intimately involved in the incident. Her probative of the matter testimony was surrounding the resuscitation of Mark and the amount of time that he was deprived of oxygen. Moreover, plaintiff interviewed Boyle prior to trial and rejected offers of a continuance by defendant and the trial judge. Under the circumstances here, plaintiff should have requested a continuance, Kipp v. Wong (1974), 163 Mont. 476, 517 P.2d 879, and Hill v. McKay (1908), 36 Mont. 440, 33 P. 345. Plaintiff argued against such continuance, submitted his case to the jury and, after an adverse jury verdict, seeks a new trial. Plaintiff is not entitled to have his cake and eat it too. Appellant also argues for a new trial on the ground of newly discovered evidence, i.e., Missy Blais was located in Portland, Oregon, af ter the trial and an af fidavit obtained from her differed in several aspects from Boyle's testimony. Although a counteraffidavit of Blais (submitted by defense counsel to correct some of the statements in Blais's original affidavit) was filed, it still appears that Blais did not remember handing Mark to Boyle or Boyle giving Mark mouth-to-mouth resuscitation in the pool. The statute describing grounds for a new trial states in pertinent part: "Grounds for new trial. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: "(4) newly discovered evidence material for the party making the application which he could not, with reasonable diligence , have discovered and produced at the trial; " Section 25-11-102, MCA. . . . The statute requires that newly discovered evidence could not have been discovered with reasonable diligence. brief, plaintiff does not deny In his that one of plaintiff's witnesses, Lisa Galligos (who was called at trial by plain- tiff and was listed as one of the plaintiff 's witnesses on both pretrial orders) knew where Blais was all along. A si~nple inquiry by plaintiff of one of its own witnesses would have been sufficient. Further, in one of defendant's answers to plaintiff's interrogatories, Blais was described as having pulled Mark from under the water and having taken him to the edge of the pool. crucial witness. This established Blais as a Had plaintiff interrogated his witnesses more thoroughly prior to trial and during preparation of his case, he would have discovered the whereabouts of Blais. Appellant next argues that the District Court erroneously instructed the jury on the proper standard of care by refusing to give three proposed instructions, which specifically stated that a greater degree of care is owed to a child than to an adult. The court sustained objections to these instructions on the grounds that they did not state the law in Montana as reflected in Henroid v. Gregson Hot Springs (1916), 52 Mont. 447, 158 P. 824. The court instead gave appellant's Instruction No. 22, which read: "When a person undertakes the control of supervision of a child, he has the duty to use reasonable care to protect the child from injury. Although such person is not an insurer of the safety of the child, he is required to use reasonable care commensurate with the reasonable foreseeable risk of harm to which the child might be subjected while under his control and supervision." Henroid appears to be the sole Montana case discussing a swimming pool operator's standard of care owed to a child. In Henroid a thirteen-year-old boy who apparently could swim (although plaintiff alleged otherwise) drowned dant's pool. in defen- In affirming the trial court's granting of a nonsuit, this Court said: "Plaintiff must have had some purpose, however, in alleging that Leo Henroid could not swim and in attempting to prove the fact, and that this fact was known to defendant. It must have been the purpose of this allegation to fix the measure of defendant's duty in this particular instance. That duty is to be measured by the standard of ordinary care (Phillips v. Butte, etc., Fair Ass'n, 46 Mont. 338, [N.S.] 1076), 127 Pac. 1011, 42 L.R.A. and ordinary care- care proportionate is-to the risk to be apprehended and guarded against (Bourke v. Butte, E. & P. Co., 33 Mont. 267, 83 Pac. 470). .. "Other things being equal, the defendant would owe a nigher degree of care to the boy whom it knew could not swim, and who was permitted in the pool, than to one whom it knew could swim. In other words, the ability to swim or the lack of it would be an important factor in the sum of all the circumstances which determine what is and what is not ordinary care." (Emphasis added.) 52 Mont. at 455-456, 158 P. at 825. This statement in Henroid appears to be with other pronouncements on the subject. in keeping In Gault v. Tablada (S.D. Miss. 1975), 400 F.Supp. 136, aff'd, 526 F.2d 1405, a six-and-one-half-year-old boy (approximately the same age as Mark here), who could dog paddle a little but could not swim, drowned discussing the standard in defendant's motel pool. of care owed to the Mississippi, the court stated: "In Mock v. Natcnez Garden Club, 238 Miss. 377, 9 2 So.2d 562 (1957), 8 k.L.R.2d 1315, the Mississippi Supreme Court held that the owner or operator of a bathing resort and swimming pool owed a duty to use ordinary or reasonable care for the safety of patrons or to guard against injury to them, and must exercise reasonable care and diligence to provide a reasonably safe place or accommodations and maintain the premises in a reasonably safe condition for their use. This duty varies according to the risk involved and of the - age- the invitees on the premises, and the defendants were bound to consider whether the pool area, although perhaps boy In in s a f e enouah f o r a d u l t a u e s t s . D r e s e n t e d reasonably avoidable ers t o aEY------------------------- d a n 2-----c h i l d r e n of tender ase. Mock v. N a t c h e z G a r d e n C l u b , s u p r a a t 564. See a l s o , C i t y o f ~ a c k s o n v l l l ev . S t o k e s , 74 S o . 2 d 278 ( F l a . 1 9 5 4 ) . T h u s , t h e known p r e s e n c e of - [ d e c e d e n t ] , a s well a s v a r i o u s o t h e r c h i l d r e n who were g u e s t s a t t h e d e f e n d a n t s ' m o t e l , imposed a d u t y o f c a r e upon t h e defendants commensurate with the f a c t s and circumstances t h e n e x i s t i n g . Waugh v . Duke C o r p o r a t i o n , 248 F.Supp. 626 (M.D. N.C. 1966) " (Emphasis added.) 400 F.Supp. a t 1 3 9 . - . . . The c o u r t a l s o n o t e d t h a t i n M i s s i s s i p p i , child under F.Supp. s e v e n c a n n o t be a t 140. I n B a i l e y v. 324, a defendant's the boy entered 400 Eminger ( 1 9 2 7 ) , 8 1 Mont. 79, boy swimming p o o l , go under the R o l a n d s o n ( 1 9 6 7 ) , 1 5 0 Mont. YMCA ( 1 9 6 5 ) , 1 1 2 Ga.App. nine-year-old the water. d e f e n d a n t and denying who could not and t h e r e , water In a contributorily negligent, See, Burns v. and Graham v. 613, 261 P. a s i n Montana, or knew affirming plaintiff's 684, 270, 1 4 6 S.E.2d s w i m drowned in as here, no o n e saw exactly how the jury he had verdict for m o t i o n f o r a new t r i a l , the court said: ". . . . . . c h i l d r e n of t e n d e r age may be e n t i t l e d t o a g r e a t e r d e g r e e o f care f r o m a d u l t s t o w a r d - them, p r 6 p o r t i o n e d t o t h e i r a b i l i t y t o f o r e s e e and a v o i d p e r i l s w h i c h may b e e n c o u n t e r e d ; b u t r e g a r d l e s s of t h e age o r c a p a c i t y of t h e i n j u r e d p e r s o n , i f t h e r e i s no b r e a c h o f l e g a l d u t y on t h e p a r t o f t h e d e f e n d a n t t o w a r d t h a t p e r s o n , t h e r e c a n b e no l e g a l l i a bility. A u g u s t a Amusements, I n c . v . 7 5 2 , 7 5 4 , 92 S.E.2d P o w e l l , 93 Ga.App. 720." (Emphasis added.) 1 4 6 S.E.2d a t 337. The j u r y was p r o p e r l y c h a r g e d a p p e l l a n t ' s I n s t r u c t i o n No. 22. i n t h e i n s t a n t case by Although it d o e s n o t s p e c i - f i c a l l y s t a t e t h a t a g r e a t e r d u t y i s owed, i t e x p r e s s e s t h e i d e a t h a t t h e reasonable c a r e t o be accorded t h e p l a i n t i f f by defendant must be commensurate to the foreseeable risk of harm, i.e., the child's age and maturity are factors to be taken into account in determining what risks are reasonably foreseeable. Henroid, Gault and Bailey, supra, all bear this out. Moreover, plaintiff's counsel fully argued to the jury the proper standard of care and pointed out the particulars of the alleged negligence of Boyle and the defendant. Plaintiff's substantial rights were not prejudiced by the failure to give the requested instructions. Agency of Bozeman, Inc. v. Pasha (1981), - Mon t Associated . , 625 P.2d 38, 38 St.Rep. 344. Lastly, appellant argues that the District Court erred in failing to grant plaintiff's motion for summary judgment on the liability issue, relying principally on the cases cited as authority in his rejected jury instructions. We do not agree. There were a number of genuine issues of material fact presented by defendant, thereby precluding plaintiff's motion for summary judgment on the issue of liability. 56(c), M.R.Civ.P. of whether Rule For example, there was a factual question defendant had provided a sufficient ratio of lifeguards to pool users according to water safety procedure. There was also a factual question, raised by the complaint and an expert's affidavit, as to how long Mark was under water which, of course, is the nub of plaintiff's case. Furthermore, there was a factual question of whether defendant had properly instructed its patrons in pool use in accordance with accepted water safety standards. By virtue of these and other factual questions, we hold that the District Court did not err in failing to grant plaintiff's motion for summary judgment on the liability issue. Affirmed. Q# 3 ~ 9~ qJ42.p 4 Chief Justice We concur: /7 Mr. Justlce John C. Sheehy, dissentlny: The first ground upon which I would reverse and grant a new trial of this cause is the impropriety of admitting evidence of the experiment by Pam Boyle, and her opinion based upon that experiment as to the length of time that hark Johnson was under water, deprived of oxygen. Pam Boyle's testimony of the near drowning incident beglns witn herself being in the pool hanging onto the edge, approximately half way between the two ends on the side of the pool away from the boys' locker room. While she was there a young boy swam up to her and informed her that a boy had drowned. She then saw Missy Blais and another boy bringing Mark Johnson from the water somewhere in the middle oi the pool. She went to them, took Mark Johnson from Missy Blals, and immediately started to administer mouth-to-mouth She stated, probably truthfully, that she resuscitation. hdd saved MarK Johnson's life. After the incident, Pam staged a series of races among several boys involving a rubber ring and a ten-pound weight tor the purpose of determining how long Mark Johnson was under tne water. According to her testimony, these tests demonstrated that Mark was under water only thirty seconds. She was allowed to testify to that conclusion as a fact. Based on her observation, ner opinion as to the result of the experiment, limiting Mark's underwater experience to tnirty seconds, was clearly irrelevant. llsh, and no other witness She did not estab- established, how long Mark Johnson had been under the water before he was discovered and brought to the surface by Ms. Blais and the boy. At the most the races or games, conducted after the incident, only showed how long it would take boys, diving and swimming, to retrieve a rubber ring or a diving bell from under the water. As a matter of fact, the boys were unable to retrieve the diving bell. It was, of course, irnpossible to establish that Pam Boyle was an expert as to how long Mark was under the water prior to being brought to the surface. It takes actual observation, not expertise, to establish such a fact. She did not have the actual observation. The rule applicable to the admissibility of the opinion of an expert witness in Montana, until now, has been that if his opinion is unsupported by the details of his nledsurements or observations, both as to the data upon which they are based and the manner of reaching the result, his opinion is not competent or relevant. details it When he gives the is a question of law whether his method was correct, and a question of fact as to whether his result was correct. Irion v. Hyde (P940), 110 Mont. 570, 105 P.2d 666. The rule in Irion applies with special force in this case: "A witness, of special knowledge or skill on a subject outside of the ordinary realm of human experience, may be permitted to state his inference, from facts observed by him, as to matters connected with his specialty, not only because of the frequent difficulty of communicating the facts to the jury but also because, even if the facts could be fully laid before them, they would not possess the special knowledge or training necessary to coordinate and weigh the facts so as to draw the correct and proper inference rherefrom. Such a witness is frequently termed an expert, but this is inaccurate, for the skilled witness testifies to the result of his own observation, and occupies tne same position as any other witness except that within certain lines ne possesses a superior knowledge which enables him to understand, as one without such special knowledge could not, what he has observed, although he may also be competent to testify as an expert upon hypothetically stated facts. .. . . It. the judgment of an expert, when opposed to undisputed facts and the dictates of common sense, will not support a verdict, and the court should not-permit the iurv to be influenced bv evidence on which they could not, within the laws of correct reasoning, make the finding. .. "'l'he reasons for rejecting a conclusion become stronger where it is apparent that it cannot reasonably be reached on the facts which are claimed to support it, where such facts are themselves the result of inference, or where the conclusion is not a necessary one. .I1 110 Mont. at 577-578, 105 P.2d at 671. (Emphasis added; citations omitted.) . 'The evidence of this professed expert, not being based upon her knowledge, observation, or an inference of fact reasonably derived from other facts, was compounded when her opinion as to length of time that Mark Johnson was under water was used as a basis by defense medical witnesses to testify that he could not have suffered oxygen deprivation. Her opinion flies in the face of her observed condition of the boy following his rescue, that his lips were blue, and of an independent witness, who observed that the boy's face was blue. In fact, in a later-discovered letter that Pam Boyle herself had written to defense counsel, she stated, "Mark's face was very blue and I got no response after slapping his face." The staged races among the boys could never be a basis for her opinion as to how long Mark was under water when no observation existed to support the conciusion given. Secondly, this case should be reversed because of the f a l l t i r e by d e f e n s e t o comply w i t h p r e t r i a l d i s c o v e r y r u l e s . On t h e d a y b e f o r e t h e t r i a l , c o u n s e l f o r d e f e n s e moved t h e c o u r t t o add f o u r w i t n e s s e s t o t h e l i s t of p r o p o s e d w i t nesses i n the t r i a l . One of t h e s e names, Pam B o y l e , t u r n e d o u t t o be a c r i t i c a l w i t n e s s i n t h e c a u s e . The o t h e r t h r e e w i t n e s s e s had n o t been i d e n t i f i e d t o p l a i n t i f f ' s c o u n s e l i n any p r e t r i a l plaintiff had addresses of discovery requested all beforehand, in witnesses although interrogatories having any seasonably the names knowledge and of the p e r t i n e n t f a c t s of t h e i n c i d e n t . The s i t u a t i o n w i t h Pam B o y l e i s p a r t i c u l a r l y d i s t u r b ing. Her a d d r e s s g i v e n by t h e d e f e n s e i n t h e i r r e s p o n s e t o t h e i n t e r r o g a t o r i e s was h e r p a r e n t ' s home, b u t i n f a c t t h i s was n o t h e r t r u e a d d r e s s . I t was d i s c o v e r e d a t t h e t i m e o f t h e m o t i o n f o r new t r i a l , when t h e a e f e n s e was r e q u i r e d by t h e c o u r t t o "cough-up" a letter Boyle b e f o r e t h a t defense counsel did have her the t r i a l , address, and that she i t had r e c e i v e d f r o m Pam was residing in in fact Omaha, Nebraska. Miss B o y l e w r o t e a l e t t e r t o t h e law f i r m , in which stated certainly now at trial. In her she variance with some what she facts that testified are at the letter she s t a t e s : ". . . I was somewhere i n t h e s h a l l o w e n d when Mark r e q u e s t e d p e r m i s s i o n t o go t o t h e bathroom. P e r m i s s i o n was g i v e n . " A s h o r t t i m e l a t e r ( I h a v e no i d e a o f t n e e x a c t t i m e ) J o e y a n d a n o t h e r boy w e r e s h o u t i n g a t m e a c r o s s t h e p o o l and Missy, a j u n i o r c o u n s e l o r , b r o u g h t Mark t o m e . I was by t h e s i d e , somewhere b e t w e e n t h e t h r e e and f i v e f o o t mark on t h e r i g h t s i d e of t h e p o o l . " M a r k ' s f a c e was v e r y b l u e and I g o t no response a f t e r slapping h i s face. . ." It wiil be s e e n f r o m t h e c o n t e n t s of her letter to counsel, a p p a r e n t l y some p e r i o d of t i m e before the t r i a l , t h a t Pam B o y l e had no b a s i s upon which s h e c o u l d e s t i m a t e t h e p e r i o d o f t i m e t h a t Mark J o h n s o n had b e e n u n d e r w a t e r . b e c a u s e of t h e f a i l u r e o f d e f e n s e c o u n s e l , w h e t h e r p u r p o s e l y or inadvertently is unimportant, t o divulge t h e t r u e address i n r e s p o n s e t o t h e i n t e r r o g a t o r i e s of Pam B o y l e , p l a i n t i f f was d e p r i v e d o f t h i s m o s t i m p o r t a n t i n f o r m a t i o n . Plaintiff, in i m m e d i a t e l y b e f o r e t r i a l , made a m o t i o n - l i m i n e t h a t Pam B o y l e and t h e o t h e r t h r e e w i t n e s s e s n o t b e a l l o w e d t o t e s t i f y b e c a u s e of t h e f a i l u r e o f d e f e n s e c o u n s e l t o a b i d e by t h e p r e t r i a l d i s c o v e r y r u l e s . t h a t motion, The c o u r t r e f u s e d and o f f e r e d i n s t e a d t o a l l o w i n t e r v i e w s of t h e w i t n e s s e s on t h e d a y o f t h e t r i a l , the cause i f necessary. and o f f e r e d t o c o n t i n u e The o f f e r t o c o n t i n u e t h e c a u s e was d e c l i n e d s e v e r a l times by p l a i n t i f f ' s c o u n s e l , they relying on t h e i r b e l i e f t h a t u n d e r Montana l a w , t h e t e s t i m o n y o f t h e witnesses should not be allowed at all because of the f a i l u r e of d e f e n s e c o u n s e l t o p r o v i d e t h e p e r t i n e n t informat i o n i n accordance with p r e t r i a l discovery r u l e s . The Montana Rules of Civil Procedure provide a p o s l t i v e d u t y on t h e p a r t o f t h e p a r t y r e s p o n d i n g t o i n t e r - rogatories to supplement thereafter acquired. the same to include R u l e 2 6 ( e ) ( 2 ) , M.R.Civ.P., information provides: "A p a r t y i s u n d e r a d u t y seasonably to amend a p r i o r r e s p o n s e i f h e o b t a i n s i n f o r m a t i o n upon t h e b a s i s o f which ( A ) h e knows t h a t t h e r e s p o n s e was i n c o r r e c t when made, o r ( B ) h e knows t h a t t h e r e s p o n s e t h o u g h c o r r e c t when made i s no l o n g e r t r u e and t h e c i r c u m s t a n c e s a r e s u c h t h a t a f a i l u r e t o amend t h e r e s p o n s e is i n s u b s t a n c e a knowing c o n c e a l m e n t . " (Emphasis added. ) A t t h e t i m e of letter from Pam t h e r e c e i p t by d e f e n s e c o u n s e l of Boyle, mailed f r o m Omaha, Nebraska, the the detense counsel knew that the response that they had made respecting her address was incorrect. Under the language of our Rule 26, whether their failure to disclose the correct address was purposeful or inadvertent, the legal effect is that it is a "knowing concealment." to The same rule applies the witnesses which were not divulged until the day before trial, other than Pam Boyle. In Sanders v. Mount Haggin Livestock Company (1972), 16c) Mont. 73, 500 P.2d 397 (Haswell, J., and Daly, J., dissenting), this Court, on nearly the same details, held it reversible error for a trial court to allow witnesses to testify whose location had not been made known to the other party : "This situation justified and required the exclusion of the witnesses1 testimony. A motion to exclude and disallow any testimony of these witnesses was made, supported, and elaborated upon with a complete statement of the surrounding facts. The trial court was in error to refuse this sanction for failure to make proper and accurate responses to interrogatories that were designed to elicit exactly the information which was withheld." 160 Mont. at 82, 500 P.2d at 402. It is not an answer to this issue that plaintiff's counsel themselves never identified in interrogatory answers an expert, Vern Cherewatenko, as being an expert or a witness. Two wrongs do not make a right, and we are not here considering whether prejudice resulted to the defense from the failure to divulge information about Cherewatenko. issues should easily have been The resolved at the District Court level by an evenhanded ruling from the District Court that the undisclosed witnesses presented by either party would not be allowed to testify when the pretrial discovery process was abused. I t i s my b e l i e f , of law and facts at since I subscribe t o f u l l disclosure all stages of the trial, that the p u r p o s e o f .the R u l e s o f C i v i l P r o c e d u r e i s b e s t s e r v e d when l a w y e r s a r e f u l l y c a n d i d w i t h f e l l o w l a w y e r s and t h e c o u r t s . By i n s i s t i n g on t h e i n t e g r i t y o f d i s c o v e r y u n d e r the rules, we and open up the facts, protracted litigation. members o f encourage settlements, avoid T h e s e w e r e t h e p r o m i s e s h e l d o u t by t h i s C o u r t when t h e y came t o t h e l e g i s l a t u r e i n 1 9 4 3 t o g e t a u t h o r i t y t o a d o p t t h e f e d e r a l r u l e s of p r o c e dure for Montana. S i n c e S a n d e r s v. t h i s C o u r t h a s shown some s p i n e grity Co. of the 978, - Plont. 38 S t . R e p . , Owen 627 P.2d B u f f a l o B u i l d i n g Co. 694, v. 1233, (1981), 1 5 8 8 ; K u i p e r v. 6 3 2 P.2d Haggin, supra, i n s i s t i n g on t h e process. , ( 1 9 8 1 ) , - Mont. Swenson v. P.2d discovery in Mount F. A. District Court 38 S t . R e p . Buttrey 38 S t . R e p . - Mont. 1288. inte- 714; , 635 (1981) T h e r e i s no r e a s o n t o s t e p back now f r o m r e q u i r i n g f o r t h r i g h t c a n d o r i n the discovery process. L ' Mr. J u s t i c e F r a n k B . M o r r i s o n , J r . : I Sheehy. concur in the foregoing dissent of Mr. Justice

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