Kamensky v. Stacey

Decision Date09 April 1975
Docket NumberNo. 1,No. 50352,50352,1
Citation215 S.E.2d 294,134 Ga.App. 530
PartiesHarry KAMENSKY v. E. Q. STACEY et al
CourtGeorgia Court of Appeals

Hirsch, Beil & Partin, Milton Hirsch, Jacob Beil, John P. Partin, Columbus, for appellant.

Kelly, Champion, Denney & Pease, Philip J. Johnson, William H. Young, III, Columbus, for appellees.

Syllabus Opinion by the Court

WEBB, Judge.

E. Q. Stacey, d/b/a Thomasville Iron & Metal Company, brought suit against Harry Kamensky, d/b/a E. Cohn & Company, and Seaboard Coast Line Railroad Company seeking to recover the value of 99,200 pounds of scrap metal allegedly shipped from Stacey in Thomasville to Kamensky in Columbus via Seaboard. Count I alleged that Kamensky received the shipment and failed to pay for it, and Count II alleged that since Kamensky had denied receiving it, Seaboard was liable for failure to deliver. Verdict and judgment were rendered in favor of defendant railroad on Count II, and in plaintiff Stacey's favor against defendant Kamensky on Count I. Kamensky now appeals to this court. Held:

1. The key issue in this case was whether Kamensky did or did not receive the carload of scrap metal. Prior to trial Kamensky served continuing interrogatories upon Stacey, and the questions and answers pertinent to enumeration of error 4 are as follows: '(Q.) If physical checks were made as purported of said railroad car on the premises of E. Cohn & Company (Kamensky), please state as follows: a. Who made those checks? (A.) By the carrier. (Q.) b. What is the name or names of the individuals so checking? (A.) Unknown to plaintiff at this time.'

These answers to the interrogatories were not supplemented, and at trial plaintiff Stacey called Mr. Gwendolyn Barr as his witness. Before Barr could testify, Kamensky moved that the witness be barred from testifying, or in the alternative for a continuance or mistrial, on the ground that Barr's name was not furnished by Stacey as requested by the above interrogatories. Stacey, for his failure to thus comply, imposed the ultimate sanction upon himself and withdrew Barr as a witness, and the trial court was of the opinion that the error, if any, was thus cured.

Unfortunately for Kamensky, however, co-defendant railroad had itself subpoenaed Barr as its own witness, Kamensky had failed to pursue discovery of this witness' identity from the railroad, and the railroad subsequently called Barr as its own witness after plaintiff had rested. Kamensky renewed his objections and motion with regard to Barr's testimony, but the trial court, having ascertained that no interrogatories had been served upon the railroad, overruled them and allowed Barr to take the stand. Barr testified that he was an employee for the Southeastern Demurrage and Storage Bureau; that it was his responsibility to make daily yard checks of Kamensky's premises to determine loading and unloading activity and storage and demurrage charges for rail equipment; that he had done so at the time involved in this litigation, and had ascertained from visual inspection of the contents of the railroad car in question that the car had arrived at Kamensky's premises in a loaded condition. This testimony cinched Stacey's case against Kamensky and exonerated the railroad, and Kamensky complains in Enumeration 4 that the trial court erred in allowing Barr's testimony without giving Kamensky an opportunity to interview or depose him, or in the alternative erred in failing to grant a mistrial.

This enumeration is without merit. It is noteworthy that at the time Barr was initially offered as a witness by Stacey, and again when he was called as a defense witness by the railroad, Kamensky did not claim surprise as a ground of his objections and motions. The main purpose of imposing the sanctions of postponement, mistrial, etc. against a party for failing to comply with continuing interrogatories is the prevention of surprise. Jones v. Atkins, 120 Ga.App. 487, 491, 171 S.E.2d 367. 'The broad purpose behind the deposition and discovery rules was to take the sporting element out of litigation. . . . The sporting theory of litigation thrives on surprise-including surprise witnesses. Elmination of this sort of tactics is a legitimate purpose of the discovery rules, especially when considered in connection with Rule 16 on pre-trial proceedings.' 4 Moore's Federal Practice 26-212, § 26.57(4)-'Names of Trial Witnesses.' Thus where the complaining party cannot legitimately claim surprise, either because he knew of the existence of the witness or had equal...

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16 cases
  • Hunter v. Nissan Motor Co., Ltd. of Japan, A97A1389
    • United States
    • Georgia Court of Appeals
    • December 5, 1997
    ...588(2), 452 S.E.2d 159 (1994); White v. Lance H. Herndon, Inc., 203 Ga.App. 580, 581(5), 417 S.E.2d 383 (1992); Kamensky v. Stacey, 134 Ga.App. 530, 215 S.E.2d 294 (1975). In Glennville Hatchery, supra, and Jones v. Livingston, 203 Ga.App. 99, 102(4), 416 S.E.2d 142 (1992), however, we did ......
  • City of Atlanta v. Bennett
    • United States
    • Georgia Court of Appeals
    • July 9, 2013
    ...mistrial when counsel was notified of new witnesses within five days of trial as specified by pretrial order); Kamensky v. Stacey, 134 Ga.App. 530, 532(1), 215 S.E.2d 294 (1975) (“[When] the complaining party cannot legitimately claim surprise, either because he knew of the existence of the......
  • Hanna Creative Enterprises, Inc. v. Alterman Foods, Inc.
    • United States
    • Georgia Court of Appeals
    • November 10, 1980
    ...under Code Ann. § 81A-126(e)(2) is triggered. Cf. Jones v. Atkins, 120 Ga.App. 487, 490(2), 171 S.E.2d 367 (1969); Kamensky v. Stacey, 134 Ga.App. 530, 215 S.E.2d 294 (1975). In the instant case, this threshold was reached. It is clear that defendant might well be "surprised" by the introdu......
  • Yang v. Smith
    • United States
    • Georgia Court of Appeals
    • June 12, 2012
    ...of surprise to each party.” (Footnote omitted.) Stewart v. Odunukwe, 273 Ga.App. at 381, 615 S.E.2d 223. See Kamensky v. Stacey, 134 Ga.App. 530, 532, 215 S.E.2d 294 (1975) ( “[W]here the complaining party cannot legitimately claim surprise, either because he knew of the existence of the wi......
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