Laney v. Hefley
| Decision Date | 17 January 1974 |
| Docket Number | No. 19760,19760 |
| Citation | 262 S.C. 54,202 S.E.2d 12 |
| Court | South Carolina Supreme Court |
| Parties | Nancy H. LANEY, as Administratrix of the Estate of Angela Dawn Laney, Respondent, v. James Crawford HEFLEY, Appellant. |
B. D. Hayes and John C. Hayes, Hayes, Brunson & Gatlin, Rock Hill, for appellant.
James H. Howey, Lancaster; and Henry Hammer, Columbia, for respondent.
This is an action, commenced in February 1972, to recover for the wrongful death of Angela Dawn Laney who was two and a half years old at the time of her death. She was fatally injured on October 26, 1970 when she came in contact with an automobile driven by the appellant, the accident occurring on Hudson Street in the City of Lancaster, approximately in front of the home of her grandmother, Mrs. Nellie Laney, with whom the child and her parents were then living. At a trial commencing October 26, 1972, the plaintiff recovered a verdict for actual damages in the amount of $7,000.00.
The only question upon appeal arises out of the application of Circuit Court Rule 90 to the facts herein related. In April 1972, pursuant to interrogatories served upon plaintiff, answers thereto were served in which there were listed the names of witnesses known to plaintiff or her counsel, there not being listed the names of four persons who were present in the house with the mother of the deceased child at the time of the fatal accident. Subsequently, on September 20, 1972, the defendant took the depositions of both parents of the deceased child and each of them testified that they did not know of any witness who actually saw the accident. The mother, however, testified that there were four persons present with her at the residence at the time of the accident, to-wit: Mrs. Nellie Laney, Pat Ballard, Barbara Reeves and Emily Hinson, none of whose depositions, however, was subsequently taken by the defendant.
Upon the trial of the case, counsel for plaintiff offered all four of these persons as witnesses. Counsel for the defense objected on the ground that they had not been disclosed as witnesses in answers to the April interrogatories and contended that such witnesses should not be permitted to testify. The trial judge, in the absence of the jury, heard the testimony of all of these witnesses and thereafter denied defendant's motion for a mistrial and ruled that such witnesses would be permitted to testify. However, only the grandmother, Mrs. Nellie Laney, and Mrs. Hinson testified in the presence of the jury. The defendant presently does not contend that there was anything prejudicial in the testimony of Mrs. Hinson, but does seriously urge that His Honor erred in failing to either exclude the testimony of Mrs. Nellie Laney, or, in the alternative, grant his motion for a mistrial.
Mrs. Nellie Laney did not actually see the accident but testified that she was sitting at a window in her bedroom sewing when she heard the Hefley car approaching, looked up and saw the car going by the window, and a moment later heard the noise of the accident. She was asked if she could tell about how fast the car was going and replied, She was the only witness offered by the plaintiff who actually saw the defendant's car prior to the accident, but her testimony as to the speed thereof was corroborative of the testimony of the father of the child to the effect that the defendant himself had stated subsequent to the accident that his speed was about 35 to 40 miles per hour, which statement the defendant denied having made. The lawful, applicable speed limit was 25 miles per hour.
The plaintiff was initially represented by Mr. James H. Howey, of the Lancaster Bar, who tried the case. At some point Mr. Howey associated Mr. Henry Hammer of the Columbia Bar who apparently would have assisted in the trial of the case but for illness. Argument on behalf of the plaintiff-respondent in this Court was made by Mr. Hammer. The answers to the interrogatories were prepared by Mr. Hammer but from information furnished by Mr. Howey, and there is no suggestion anywhere in the record that there was any failure on the part of Mr. Hammer to fully comply with the pertinent rule.
The record does not at all disclose just when Mr. Howey ascertained that Mrs. Nellie Laney, or any of the other proffered witnesses not disclosed in the answers to the interrogatories, knew anything about the accident which would warrant calling them as witnesses. The brief of the respondent, however, represents that Mr. Howey did not so ascertain until several days before the actual trial while in the course of trial preparation. For the purpose of this appeal, we assume the correctness of this representation. The record containing no direct evidence that there was a willful or intentional failure on the part of Mr. Howey to fail to comply with Circuit Court Rule 90, we further assume that his noncompliance was not willful or intentional. Nevertheless, we wish it clearly understood that there was noncompliance on his part amounting to a violation of both the letter and spirit, we think, of the rule. By the literal terms of Rule 90, interrogatories served pursuant thereto are continuing ones and Mr. Howey was required to promptly transmit to the opposition the fact that he had ascertained that there were additional witnesses whom he proposed to proffer on behalf of the plaintiff.
While there was clearly noncompliance with the Rule, it does not necessarily follow that there was any reversible error in the trial court's refusal of defendant's motions based on such noncompliance. Rule 90(f) provides the procedure to be followed when a party fails to respond to interrogatories, but the Rule contains no express provision to govern the trial court, or this Court, in dealing...
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