Martin v. Dunlap

• Court: South Carolina Supreme Court
• Writing for the Court: GREGORY; LEWIS, C.J., LITTLEJOHN and NESS, JJ., and JOSEPH R. MOSS
• Citation: Martin v. Dunlap, 222 S.E.2d 8, 266 S.C. 230 (S.C. 1976)
• Decision Date: 03 February 1976
• Docket Number: No. 20164,20164
• Parties: Johnnie Mae MARTIN, Appellant, v. Robbie J. DUNLAP, Respondent.

Page 8

222 S.E.2d 8

266 S.C. 230

Johnnie Mae MARTIN, Appellant, v. Robbie J. DUNLAP, Respondent.

No. 20164.

Supreme Court of South Carolina.

Feb. 3, 1976.

Garris & Garris, Columbia, for appellant.

Roberts, Jennings & Thomas, Columbia, for respondent.

GREGORY, Justice:

Appellant commenced this action May 2, 1973 seeking recovery of damages, actual and punitive, as a result of an automobile accident on May 7, 1971. The jury returned a verdict in her favor for actual damages. No post trial motions were presented to the trial judge by either party. Appellant alleges prejudicial error by the trial judge: (1) in allowing respondent to impeach her by cross-examination on a collateral matter, and (2) in permitting respondent to introduce exhibits and present testimony of a witness not disclosed pursuant to appellant's Interrogatories. We find no prejudicial error and affirm.

Interrogatories were served by appellant pursuant to Circuit Court Rule 90, July 5, 1973 and Answers were filed by respondent July 20, 1973. The Interrogatories so propounded were framed upon the questions as set forth in Rule 90 and after having first been answered were never supplemented by respondent's counsel.

Appellant charges prejudicial error in what she alleges is impermissible impeachment on a collateral issue. At a pre-trial deposition, appellant testified she had been married to her present husband fourteen years, having married him in 1959. At trial, her husband, on cross-examination by respondent's counsel, testified he had been married to appellant eight years, having married in 1967. Appellant testified on cross-examination that she married Mr. Martin in 1967. Respondent's counsel then sought to impeach appellant by publishing her inconsistent statements concerning date and duration of her marriage to Mr. Martin from the deposition which she had introduced into evidence.

While appellant's marital status is collateral to any issue in her case in chief, the credibility of a party witness is always in issue. 'Considerable latitude is allowed in the cross-examination of a witness (always within the control and direction of the presiding judge) to test the accuracy of his memory, his bias, prejudice, interest, or credibility. In doing so the witness may be asked questions in reference to irrelevant matter, Or in reference to prior statements contradictory of his testimony, or in reference to statements as to relevant matter not contradictory of his testimony. It does not follow, however, that the witness may be impeached by contradictory witnesses to the same extent that the interrogation may be permitted.' (Emphasis supplied) State v. Thompson, 118 S.C. 191, 110 S.E. 133, 134 (1921).

Impeachment of a witness's credibility by asking questions not relevant to the case in chief with a view of obtaining contradictory or inconsistent statements is, thus, limited to cross-examination of the witness sought to be impeached. The right does not extend to putting another witness on the stand to contradict him as to such collateral matters. This is the principal distinguishing feature in McVey v. Whittington, 248 S.C, 447, 151 S.E.2d 92 (1966), and State v. Brock, 130 S.C. 252, 126 S.E. 28 (1928), on which appellant relies.

It is important to note in this respect that Mr. Martin was appellant's own witness. He was not introduced by respondent. In addition, the inconsistent statements with which appellant was impeached and upon which she was cross-examined were published from a pre-trial deposition which appellant had put into evidence. As a general rule, a witness may be cross-examined as to a writing concerning which he has testified on direct examination or which he has introduced in evidence. 98 C.J.S. Witnesses § 391; See Hansson v. General Insulation & Acoustics, 234 S.C. 177, 107 S.E.2d 41 (1959).

Appellant next charges reversible error in the trial judge's permitting respondent to present the testimony of Mrs. Doris W. Hodges when her name was not listed in respondent's Answers to appellant's Interrogatories. Respondent's counsel had no knowledge of the name of the witness, Doris W. Hodges, nor the exhibits hereinafter questioned, prior to the first day of trial, March 20, 1975. Respondent's counsel met Mrs. Hodges and examined the mill records of Pacific Columbia Mills, appellant's employer, pursuant to a subpoena Duces tecum which he had served.

While we do not think that disclosure of the mill records pertaining to appellant was required by the Interrogatories propounded under Circuit Court Rule 90 for reasons hereinafter discussed in connection with assignments of error in their admission, we do think that the rule requires disclosure of Mrs. Hodges; and if her name be not known, then her identity as well as can be described.

Circuit Court Rule 90(e), subsection 1, requires a party to 'give the nemes and addresses of persons known to the parties or counsel to be witnesses concerning the facts of the case.' Although Mrs. Hodges did not witness the accident, or even know respondent, she was subpoenaed to introduce and verify appellant's payroll records, and two physical examination reports. As such, we think that she was a witness 'concerning facts of the case', and her identity should have been disclosed.

Respondent contends that she had no knowledge of the name of the witness prior to the first day of trial as an excuse for non-disclosure. If the name of the witness is not known, in a case as this, where the keeper of records is being subpoenaed with a subpoena Duces tecum, we feel it incumbent on the party served with the Interrogatories to disclose the identity in terms used on the subpoena and when the proper name of such witness is learned, promptly transmit that name to the other party.

Appellant charges reversible error in the trial judge's not excluding the testimony of Mrs. Hodges as a sanction for violation of the duty of disclosure required under the Interrogatories. Respondent, on the other hand, urges this Court to adopt an exclusion in regard to Circuit Court Rule 90 whereby witnesses and exhibits to be used solely for impeachment are not discoverable. We are unwilling to limit our discovery by adoption of such an exclusion; and under the facts of the case at hand, we are unwilling to disturb the ruling of the trial judge in permitting Mrs. Hodges to testify.

A crucial issue for the jury, if it returned a verdict for appellant, was the amount of damages to which she would have been entitled, based not only on injuries sustained, but the length of the convalescence that was necessary before she was able to return to work.

Appellant's husband testified that his wife had gone to work in September or October following the accident that gave rise to the lawsuit. He was asked when she applied for a job after discharge from the hospital and he replied 'It was around September or October, like I said.'

Mrs. Martin testified she was hospitalized from May 12, 1971 until May 21, 1971 (the accident occurred on May 7, 1971). On direct examination she testified she returned to work 'around September, 1971.' On cross-examination she was asked if she had not testified on her deposition that she had returned to work in approximately October and she responded, 'Well, it was approximately around that time.'

Mrs. Martin was further asked if she had not made application to Pacific Columbia Mills for work as a spinner on June 16, 1971 and she replied that she did not recall it. She was next asked if she had filled out a medical form, and she denied it. Appellant was next asked to identify the application she submitted to the mill and this she did, giving the date of the application as being June 16, 1971. Exhibit 1, Application for Employment, was introduced into evidence over the objection of appellant's counsel.

On appellant's...