Cornwell v. Plummer

• Decision Date: 16 December 1975
• Docket Number: No. 20133,20133
• Citation: 220 S.E.2d 879,265 S.C. 587
• Court: South Carolina Supreme Court
• Parties: Laymon R. CORNWELL, Respondent, v. Eva Mae PLUMMER, Appellant.

Page 879

220 S.E.2d 879

265 S.C. 587

Laymon R. CORNWELL, Respondent, v. Eva Mae PLUMMER, Appellant.

No. 20133.

Supreme Court of South Carolina.

Dec. 16, 1975.

Jackson L. Barwick, Jr., Belser, Baker, Belser, Barwick & Toal, Columbia, for appellant.

Harold R. Boulware and E. Ellison Walker, McKay, Sherrill, Walker, Townsend & Wilkins, Columbia, for respondent.

GREGORY, Justice:

Respondent instituted this action to recover damages to his tractor-trailer and lost profits as a result of a collision with appellant's automobile. Appellant appeals from a verdict in respondent's favor asserting that the trial judge committed error (1) in denying appellant the right to cross examine respondent regarding business profits reported in his income tax returns, and (2) in refusing to grant appellant's request to charge S.C.Code Ann., § 46--361(a), (c), Cum.Supp. (1962), regarding speed under hazardous conditions.

Respondent testified to a net loss of profits from his trucking operation of $5,000 for the two and one half months necessary to repair his tractor-trailer. Federal and State Income Tax Returns for the years 1970, 1971 and 1972 were produced at trial pursuant to subpoena Duces tecum and introduced into evidence by respondent. He testified that the returns had been improperly prepared by a tax service for which he was assessed additional tax. Appellant attempted to cross examine respondent regarding the Profit (or Loss) from Business Schedule of his 1971 income tax return because it was inconsistent with his trial testimony. ¹ The trial judge refused to allow appellant to question respondent regarding the profit and loss schedule of the tax return on the ground of irrelevancy.

'While it is true that the scope of the cross examination is largely in the discretion of the trial judge, still, when the question is as to the relevancy of the evidence . . ., it becomes a matter of law upon which this court ought to pass.' Bunch v. Charleston & W. C. Ry. Co., 91 S.C. 139, 74 S.E. 363 (1912); Garrett v. Mutual Ben. Life Ins. Co., 239 S.C. 574, 124 S.E.2d 36 (1962).

We think that the information in the income tax return regarding respondent's net earnings and profit or loss on his tractor-trailer is relevant for two important reasons. First, respondent claimed lost profits and earnings as an element of damage in his Amended Complaint and in his testimony at trial and an issue was made with respect thereto under Appellant's Answer. It is apparent that evidence regarding prior statements contained in respondent's income tax return indicating income earned (or lack thereof) from the operation of the tractor-trailer to be less than the amount to which respondent testified was relevant, and admissible for the truth of the matter asserted in the written statement as an admission of a party opponent. Hunter v. Hyder, 236 S.C. 378, 114 S.E.2d 493 (1960).

Second, the credibility of a party witness is always in issue. The prior statements in respondent's income tax returns indicating income earned (or lack thereof) from the tractor-trailer was inconsistent with his trial testimony. The relevant portions of the returns were admissible to impeach respondent's credibility by a prior inconsistent statement. Harper v. American Ry. Express Co., 139 S.C. 545, 138 S.E. 354 (1927). Numerous decisions hold that material in a party's income tax return is proper evidence for the purpose of contradicting his trial testimony on a matter in issue, including especially, loss of earnings. Collins v. Farley, 147 So.2d 593 (Fla.App.1962), Halladay v. Verschorr, 381 F.2d 100 (8 Cir. 1967).

Loss of profits and earnings was a vital issue and the trial judge's denial of cross examination on the grounds of irrelevancy was plainly prejudicial.

Additionally, respondent introduced the 1971 return as his Exhibit and they could well have been regarded by the jury as supporting in some way his claim for lost profits and earnings. Appellant was plainly entitled to cross examine respondent with regard thereto to demonstrate, if true, that the entries shown as income figures thereon were not in fact referable to the ownership or operation of a tractor-trailer. The jury should not have been left to determine this matter for themselves without clarification.

Although the tax returns were introduced into evidence by respondent, he argues that the judge was correct in not allowing cross examination because he admitted the returns were erroneous. The better and accepted view is that appellant be allowed to cross examine with respondent's being given an opportunity to explain the inconsistencies. McMillan v. Ridges, 229 S.C. 76, 91 S.E.2d 883 (1956). It is a general rule that a witness may be cross examined as to a writing concerning which he has testified on direct examination or which he has introduced in evidence. 98 C.J.S....