Coffey v. Jenkins
| Decision Date | 10 October 1921 |
| Docket Number | 10742. |
| Citation | 109 S.E. 117,117 S.C. 321 |
| Parties | COFFEY v. JENKINS. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Spartanburg County; W. H Townsend, Judge.
Action by Nessey Coffey against J. F. Jenkins. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
The grounds of appeal were as follows:
His honor, the presiding judge, erred in admitting the affidavit of John Scruggs over the objections of the defendant on the following grounds, to wit:
(1) Because said affidavit purports to be an ex parte statement of the witness John Scruggs, made at a time and place and under circumstances when the defendant had no opportunity to be present or to cross-examine said witness.
(2) Because the foundation for contradicting said witness was not laid, nor was any notice given, at the time the statement offered by the defendant as to what John Scruggs would testify to, that plaintiff's attorneys had or would not offer the affidavit for the purpose of contradicting the said witness by a different statement made at a different time and place.
(3) Because the affidavit offered by the plaintiff is an impeachment of the testimony of said witness as contained in the statement admitted on the part of the defendant, as it contradicts the statements as contained in defendant's affidavit, without giving the said witness John Scruggs an opportunity to admit, explain, or deny the apparently contradictory statements, thereby impeaching the witness before the jury in his absence, and without notice or opportunity to give an explanation of the same, and to the injury of the defendant in the cause.
(4) Because, the plaintiff, who held the affidavit when the defendant offered the statement of what said witness would testify to, by not giving notice that the later affidavit would be offered to contradict the witness, waived the right to contradict said witness by means of said later affidavit without first having laid the foundation for contradiction.
(5) Because the admission of the said affidavit was injurious to the defense, in that the said ex parte affidavit, offered for the purpose of contradiction and admitted, tended to impeach and did impeach, and destroy the force and effect of the statement offered by defendant.
(6) Because the court erred in holding that it was impossible to lay the foundation for contradicting the said witness, and therefore the case was an exception to the rule; the error being that, when the defendant offered his statement of what the witness would testify to, the plaintiff had then the right and opportunity to object to the admission of such statement, unless the defendant would also consent that the contradicting affidavit in their possession should also be admitted, and, further, because the impossibility of laying the foundation for contradiction was due to the plaintiff's attorneys, who had the opportunity to keep the defendant's statement of said witnesses' testimony out of the case, except upon the condition that their statement should also be admitted, and that, failing to use their opportunity, they waived the right to have it admitted without a proper foundation having first been laid to contradict said witness .
Bomar & Osborne, of Spartanburg, and Butler & Hall, of Gaffney, for appellant.
John Gary Evans, S. J. Nicholls, and C. C. Wyche, all of Spartanburg, and Dobson & Vassy, of Gaffney, for respondent.
Action for damages on account of alleged personal injury resulting from a collision between a motorcycle driven by the plaintiff and an automobile driven by the defendant. Verdict for plaintiff, and defendant appeals.
Upon the call of the case for trial in the circuit court, the defendant moved for a continuance upon the ground that John Scruggs, a material witness, was absent. He had not been subp naed for the reason, as counsel orally announced to the court, that "only a short time before" they had learned that he was out of the state, in North Carolina, and that in the meantime they had been making efforts to locate him without avail, and that for the same reason no deposition had been taken. Counsel for the plaintiff objected to the continuance, and insisted upon a compliance with rule 27. Counsel for defendant then prepared and submitted to the court an affidavit by the defendant, containing a statement of what the witness Scruggs would testify if he were present omitting entirely the other essential elements required by the rule. The court ruled that the plaintiff must...
To continue reading
Request your trial