Kellam v. Thomas, 72--362
| Citation | 287 So.2d 733 |
| Decision Date | 11 January 1974 |
| Docket Number | No. 72--362,72--362 |
| Parties | Margaret Delozier KELLAM and Morley L. Kellam, Appellants, v. Hugh Hammon THOMAS and United States Fidelity and Guaranty Company, a Maryland corporation, Appellees. |
| Court | Court of Appeal of Florida (US) |
J. Jay Simons and Henry L. Kaye of Simons & Schlesinger, Hollywood, for appellants.
Michael C. Spring and Steven R. Berger of Carey, Dwyer, Austin, Cose & Selwood, Miami, for appellees.
Plaintiffs in a personal injury action suffered an adverse jury verdict and judgment. The sole point they raise on this appeal is whether the court erred in allowing defendant, whose credibility was attacked by a prior inconsistent statement, to put into evidence over objection his prior consistent statement.
The defendant testified on direct examination that Mrs. Kellam (plaintiff wife) had stopped her car at a railroad crossing because of an approaching switch engine and then, in order to avoid the crossing arm striking her car, she had put the car into reverse causing it to strike the defendant's car which by that time was already stopped to the rear of Mrs. Kellam's car. On cross-examination defendant admitted that he had signed a written statement more than a year after the accident in which he had said that he did not think there was a crossing arm at the crossing. To the extent that such statement could be considered inconsistent with his trial testimony, the defendant's credibility was thereby impeached. On re-direct examination defendant identified a written statement he had signed approximately one month after the accident, which statement was consistent with his trial testimony. This latter statement, placed in evidence over plaintiffs' objection, is the subject of the point on appeal.
In Florida, as well as in most other jurisdictions, the general rule is that a witness's testimony may not be corroborated or bolstered by his own prior consistent statement. 1 However, when an attempt is made to impeach the credibility of the witness, and the basis of the impeachment is such that in fairness to the witness evidence of the prior consistent statement would tend to weaken or destroy the force of the impeaching evidence, an exception to the general rule is generally made.
One such exception is when the attempted impeachment is on the basis of a recent fabrication. 2 See, Van Gallon v. State, Fla.1951, 50 So.2d 882; Allison v. State, Fla.App.1964, 162 So.2d 922; Wofford Beach Hotel, Inc. v. Glass, Fla.App.1964, 170 So.2d 62; Jackman v. State, Fla.App.1962, 140 So.2d 627. 3 Another exception to the general rule is recognized when the basis to the attempted impeachment is by a showing of bias, interest, corruption or other motive to falsify, and the corroborating consistent statement is shown to have been made at a time prior to the existence of a fact said to indicate bias, interest, corruption or motive to falsify. In such case the prior consistent statement effectively destroys the force of the impeaching evidence. 4 Likewise, an exception to the general rule is justified when the attempted impeachment is on the basis of a prior inconsistent statement (self-contradiction), and there is an issue as to whether the witness did, in fact, utter the self-contradiction. In such case, the prior consistent statement is receivable, not as corroborating the witness's trial testimony, but as corroborating his denial of having uttered the contradictory statement.
But where, as in the case at bar, the credibility of the witness is impeached on the basis of a prior inconsistent statement and there is no issue as to whether the witness has, in fact, uttered the prior self-contradiction, the general rule is applicable and evidence of a prior consistent statement is inadmissible. The rationale is thus explained by Wigmore: ...
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