Jackson v. H & S Oil Co., Inc.

• Decision Date: 09 January 1975
• Docket Number: No. 19938,19938
• Citation: 211 S.E.2d 223,263 S.C. 407
• Court: South Carolina Supreme Court
• Parties: Sidney N. JACKSON, Respondent, v. H & S OIL COMPANY, INC., and Port City Steel Erectors, of which H & S OilCompany, Inc., is Appellant.

Page 223

211 S.E.2d 223

263 S.C. 407

Sidney N. JACKSON, Respondent, v. H & S OIL COMPANY, INC., and Port City Steel Erectors, of

which H & S OilCompany, Inc., is Appellant.

No. 19938.

Supreme Court of South Carolina.

Jan. 9, 1975.

Thomas S. Tisdale, Jr., and Wallace G. Holland, Young, Clement & Rivers, Charleston, for appellant.

Robert B. Wallace, Charleston, and George B. Bishop, Moncks Corner, for respondent.

BRAILSFORD, Justice.

I respectfully dissent from so much of the opinion of Justice Littlejohn as finds reversible error in the refusal of the trial judge to exclude the testimony of Dr. Solomon. As I read the opinion, it holds that the court was required to deny plaintiff the use of this important witness as a sanction for his violation of Circuit Court Rule 90.

In the first place, I find no such violation. Since Dr. Solomon was a stranger to plaintiff when his responses to the original interrogatories were served, the omission of his name from the list of prospective witnesses was unimpeachable. Plaintiff's responses when filed were in full compliance with the letter and spirit of Rule 90. His only further obligation, Section (c) of the Rule, was to promptly transmit to appellant any information sought which should come to his knowledge after submission of his answers and prior to trial. More specifically, Section (c) of the Rule does not establish a cutoff point for furnishing the names of newly consulted experts. It merely requires prompt transmittal of the required information upon discovery of the availability and usefulness of an unlisted witness.

Here, newly associated counsel for plaintiff suggested on Friday before court week, following his initial interview with Dr. Wallace, that an effort should be made to have plaintiff's employability evaluated by Dr. Solomon, an expert on such evaluations. By arrangement of counsel, plaintiff was examined by Dr. Solomon for the first time on Saturday and X-rays were taken. These were not available to the doctor until Monday morning shortly before a pre-trial conference conducted by the presiding judge and attended by counsel for all parties. At this conference, counsel for plaintiff advised opposing counsel that plaintiff had been examined by Dr. Solomon and that he would be called as an expert witness.

This advice at pre-trial fully met the requirement of prompt transmittal of the information after it came to the knowledge of plaintiff's counsel that the doctor's testimony would be helpful to their client's cause. Of course, the court should be astute to guard against abuse of the spitit of the Rule by calculated procrastination in securing expert opinions or by any other subterfuge. However, nothing in this record would support an attack on the good faith of counsel, and none has been mounted.

But if the view that there was a violation of Rule 90 should, perchance, prevail, such violation does not result in automatic exclusion of the testimony of a witness whose identity was not timely disclosed. Instead, '. . . such matters, of necessity, have to be left largely to the discretion of the trial court.' Laney v. Hefley, 202 S.E.2d 12, 14 (S.C.1974). When a violation is made to appear, it lies within the discretion of the trial judge to decide what sanction, if any, should be imposed. The rule is 'designed to promote decisions on the merits after a full and fair hearing, and the sanction of exclusion of a witness should never be lightly invoked.' Carver v. Salt River Valley Water Users' Ass'n., 8 Ariz.App. 386, 446 P.2d 492, 496 (1968).

Upon being advised at pre-trial conference that Dr. Solomon would be called as a witness to plaintiff's incapacity for work, counsel for appellant expressed no concern that his client might be prejudiced by the testimony of an unlisted expert. He did not request a delay or continuance so that Dr. Solomon might be examined, and he did not move that the proposed testimony be excluded for violation of Rule 90. Although the record does not contain a transcript of the pre-trial conference, the suggestion in the opinion that appellant's counsel may have made a pre-trial objection 'between counsel out of the presence of the judge' is dispelled by counsel's express stipulation, made when the doctor was called as a witness after lunch on the second day of the trial, that he had not previously objected.

I would hold that by entering upon the trial of the week-long case, with full knowledge of the fact that Dr. Solomon would be called as a witness, without objection and without seeking any appropriate relief, appellant waived any right he might otherwise have had to insist that the testimony be excluded, and would affirm the judgment of the circuit court.

As to the remaining grounds of appeal, I concur in the conclusion of Justice Littlejohn that they are without merit.

This opinion, having been written in dissent but having been concurred in by a majority, becomes the judgment of the Court.

Affirmed.

MOSS, C.J., and LEWIS and BUSSEY, JJ., concur.

LITTLEJOHN, J., dissents.

LITTLEJOHN, Justice (dissenting):

This action was brought by plaintiff Jackson, seeking actual and punitive damages as a result of personal injuries sustained in a three-vehicle collision which occurred on November 10, 1970. The jury wrote a verdict in favor of the plaintiff for $175,000.00 actual damages and $25,000.00 punitive damages against H & S Oil Company, Inc. No verdict was returned against the defendant Port City Steel Erectors and, accordingly, that defendant was exonerated. Defendant H & S Oil Company, Inc. has appealed.

The complaint alleges that Jackson was 'seriously, painfully and permanently injured in his person' and that as a result of the severe injuries 'upon information and belief will be partially-permanently disabled.' (Emphasis added)

The evidence reflects that Jackson was proceeding south in a convertible along Highway 41 near Huger, South Carolina, at a speed of some 50 to 55 miles an hour. He was meeting a low-boy truck, with a backhoe loaded thereon, operated for Port City Steel Erectors. An oil tanker, operated on behalf of H & S Oil Company, Inc., was overtaking the low-boy and meeting Jackson. It is inferable that the driver of the tanker pulled out of his lane of traffic to pass the low-boy, precipitating a collision course which caused Jackson's injuries.

In this appeal appellant H & S Oil Company, Inc. submits that judgment should be entered in favor of the defendant, or in the alternative a new trial should be granted. Error is alleged (1) in permitting Dr. Robert Solomon, a medical doctor, to testify, (2) in permitting Dr. Oliver G. Wood, an economist, to testify, (3) in refusing to direct a verdict or grant judgment notwithstanding the verdict as to actual damages, (4) in refusing to direct a verdict or grant judgment notwithstanding the verdict as to punitive damages, (5) in refusing to hold that the damages were excessive such as to require a new trial, and (6) in refusing to charge § 46--545.1 of the Code after the jury made an inquiry relative to warning lights.

We are of the opinion that the evidence warrants the inference that the driver of appellant's tanker pulled out...