Baker v. Port City Steel Erectors, Inc.

• Decision Date: 27 November 1973
• Docket Number: No. 19728,19728
• Citation: 261 S.C. 469,200 S.E.2d 681
• Court: South Carolina Supreme Court
• Parties: Emma Jean BAKER, Administratrix of the Estate of Rufus Leroy Baker, Appellant, v. PORT CITY STEEL ERECTORS, INC., and John Henry Small, Respondents.

Page 681

200 S.E.2d 681

261 S.C. 469

Emma Jean BAKER, Administratrix of the Estate of Rufus Leroy

Baker, Appellant, v. PORT CITY STEEL ERECTORS, INC., and John Henry Small, Respondents.

No. 19728.

Supreme Court of South Carolina.

Nov. 27, 1973.

Nexsen, Pruet, Jacobs & Dallis, Columbia, for appellant.

Sinkler, Gibbs, Simons & Guerard, Charleston, for respondents.

LEWIS, Justice.

Recovery was sought in this action for the wrongful death of plaintiff's intestate, resulting from injuries received in a threevehicle accident, about six (6) miles south of Huger, South Carolina, on November 10, 1970. The collision involved a truck owned by defendant, Port City Steel Erectors, Inc., and driven by its employee, the defendant, John Henry Small; a gasoline tanker driven by plaintiff's intestate, Rufus Baker; and an automobile driven by one Sidney Jackson. Jackson is not a party to the action. Upon the trial, a jury returned a verdict for the defendants, from which plaintiff has appealed. A new trial is sought upon the grounds that the trial judge erred (1) in permitting use of a scientific textbook in the cross-examination of plaintiff's expert witness and (2) in refusing to instruct the jury that an adverse inference could be drawn against defendants from their failure to produce the testimony of the defendant John Henry Small. Additional sustaining grounds have been filed, which we find it unnecessary to consider.

The first question is based on a ruling by the trial judge during cross-examination of an accident reconstruction expert who testified for plaintiff. This witness testified as to the various factors considered by him in analyzing how the accident occurred, and on cross-examination, he was asked the following:

'Q. In your analysis of how this accident occurred did you take into consideration conservation of momentum?

'A. Not particularly.

'Q. . . .. In fact you used the conservation of energy, didn't you?

'A. That's right, basically its strictly an energy factor.

'Q. All right, sir. I hand you Statistics in Dynamics, a book for mechanical engineers. I ask you to look at . . . page 574 of this textbook in basic dynamics, read the underlined portion of paragraph 13.15.

'A. (Presumably reading) However, the method of impulse and momentum is the only practical method in problems of impact, a solution based on direct application of force and they would be unwieldly and the method of work and energy cannot be used since impact from the first real action involves the loss of mechanical energy.

'Q. The use of energy cannot be used in an impact investigation, isn't that what is says?

'A. Yes, sir.

'Q. But that's what you used, energy?

'A. That's correct. There are other books and there are other formulas and there are other treatises that deal equally as thoroughly as that book. I'm not familiar with that book.'

The above cross-examination of the witness was permitted over plaintiff's objection. Other than the foregoing, there was no use by defendants of the textbook in cross-examination or in the trial.

Plaintiff contends that it was error to permit defendants to so cross-examine the expert witness from a scientific textbook with which the expert was unfamiliar, relying upon Code Section 26--142 and the cases of Mitchell v. Leech, 69 S.C. 413, 48 S.E. 290; Edwards v. Union Buffalo Mills Co., 162 S.C. 17, 159 S.E. 818; and Baker v. Southern Cotton Oil Co., 161 S.C. 479, 159 S.E. 822. In substance, these decisions hold that it is a violation of the hearsay rule to use scientific treatises in the cross-examination of an expert witness, where the effect is to permit the jury to consider the treatise as direct proof of an issue in the case. These cases are not dispositive of the present issue.

The record clearly shows that the scientific textbook was used in cross-examination of the expert solely for purposes of testing the reliability of one of the factors used by him in analyzing the accident and not as direct proof of any issue in the case. When the witness stated that he was not familiar with the text in question and that there were reliable books dealing with other formulas, besides the one being used in cross-examination, the matter was not pursued further by counsel. The text reference could not have been considered as evidence in the case. Under these facts, the limited use of the textbook solely for impeachment of the expert witness was not error.

After the testimony for plaintiff had been completed, defendants rested their case without introducing any evidence and moved for a directed verdict in their favor, which was denied. The defendant John Henry Small, the driver of the corporate defendant's truck, was seated in the courtroom throughout the trial, and presumably could have given material testimony if he had been called as a witness. During argument to the jury, counsel for plaintiff argued that the jury had a right to draw an adverse inference from the failure of the defendant Small to testify. When the trial judge completed his charge to the jury and gave the parties the opportunity to request additional charges, plaintiff requested an instruction 'that failure to produce a material witness raises a presumption that testimony of that witness would be adverse to the party failing to produce him.' The request was refused and plaintiff contends that this was error.

We have recognized the general rule in civil cases that when a party 'fails to produce the testimony of an available, material witness who is within some degree of control of the party, it may be inferred...