Gaines v. Thomas

• Citation: 128 S.E.2d 692,241 S.C. 412
• Decision Date: 18 December 1962
• Docket Number: No. 18009,18009
• Court: United States State Supreme Court of South Carolina
• Parties: Melvin GAINES, Respondent, v. Robert J. THOMAS, as Administrator of the Estate of William Joseph Martin, Jr., Appellant.

Page 692

128 S.E.2d 692

241 S.C. 412

Melvin GAINES, Respondent, v. Robert J. THOMAS, as Administrator of the Estate of William

Joseph Martin, Jr., Appellant.

No. 18009.

Supreme Court of South Carolina.

Dec. 18, 1962.

Roberts, Jennings, Thomas & Lumpkin, Columbia, Lybrand, Simons & Rich, Aiken, for appellant.

Dufour & Dufour, Aiken, for respondent.

BRAILSFORD, Justice.

In October of 1957, an automobile driven by William Joseph Martin, Jr., defendant's intestate, and a truck of Peerless Mattress Company, driven by Clyde Byars, collided on U. S. Highway #1 in Aiken County. Martin was killed and Melvin Gaines, the plaintiff in this action, who was working on the shoulder of the highway near the point of impact, was injured. Gaines brought this action in the Common Pleas Court for Aiken County against Martin's personal representative, and this appeal is from a judgment in his favor.

Previously, Byars, the truck driver, testified in an action in the U. S. District Court, brought by Martin's administrator against Peerless Mattress Company to recover damages for the alleged wrongful death of Martin. Byars died before the trial of this action, at which the plaintiff offered in evidence a transcript of his testimony at the previous trial. The court admitted it over the objection of the defendant. The correctness of this ruling is the first question involved here.

We must determine whether the testimony was properly admitted under the exception to the hearsay rule relating to the admission of the former testimony of a witness since deceased. The exception is generally stated to be that such testimony is admissible when the trial at which it is offered is between the same parties, or their privies, and involves the same issues. It has been applied in a long line of cases in this State (from Drayton v. Wells, 1 Nott & McC. (10 S.C.L.) 409 in 1818 to Brown v. Bailey, 215 S.C. 175, 54 S.E.2d 769, in 1949); and identity of parties and issues has usually been referred to as necessary. Literally applied, this statement of the rule would exclude Byars' testimony, because Gaines was not a party to the former action. However, on case has been cited from this jurisdiction in which former testimony, otherwise admissible, has been rejected for lack of identity of parties when, as here, the party against whom the testimony is offered, as a party to the former action, had full opportunity to cross-examine the witness. The facts here are different from those involved in any of our prior decisions and require an examination of the rule and of the reasons for it.

These vehicles collided upon meeting each other on the open highway. At the former trial, the issue of liability depended upon the jury's conclusion as to which driver swerved across the center line and caused the collision. Byars' testimony was on this issue and he was cross-examined by counsel for the present defendant. At the trial of this action, Gaines rested his right to recover on the charge that the proximate cause of the collision, which resulted in injury to him, was the negligence of the defendant's intestate in swerving across the center line. It was on this issue that Byars' former testimony was offered and admitted. If he had been present to testify, there would have been no reason to conduct a different cross-examination from that to which he was subjected in the former trial. In short, the party against whom this testimony was received had a fair and adequate opportunity to cross-examine the witness at for former trial.

In Jones v. Charleston & W. C. Ry. Co., 144 S.C. 212, 142 S.E. 516, the following statement of the impelling reasons underlying the rule excluding hearsay testimony was quoted with approval:

'The reason for this rule of exclusion is that hearsay is not subject to the ordinary tests required by law for ascertaining its truth, the author of the statements not being subject to cross-examination in the presence of a court of justice, and not speaking under the penal sanction of an oath, there being no opportunity to investigate his character and motives, and his deportment not being subject to observation. And the misconstruction to which such evidence is exposed, from the ignorance or inattention of the hearers, or from criminal motives, is a powerful additional objection.'

Where the parties and issues are the same, former testimony is free from all of these objections, except that the jury must weigh the credibility of the witness without having the opportunity to observe his demeanor on the stand. To preserve this opportunity, the witness must ordinarily appear in person. However, where he has died, the court yet has available relevant testimony, which has been delivered under oath, on the impressive occasion of a trial, at which the opposing party had the opportunity to cross-examine. The available evidence having been tested by the conventional means, the jury ought to have the benefit of it in its search for the truth. Hence, the exception letting in former testimony developed, on which all of the authorities are agreed when the parties and issues are the same.

The rule was formulated to insure fairness to the opposing party by limiting the admission of former testimony to situations in which he has had an adequate opportunity to cross-examine. The requirement that there be identity of parties and issues is but a means to that end. 31 C.J.S. Evidence § 390; Wigmore on Evidence, (3d) Ed., Section 1386. As stated in McCormick on Evidence, Sec. 232, 'It is a convenient phrase to indicate a situation where the underlying requirement of adequacy of the present opponent's opportunity of cross-examination would usually be...