Coffey v. Jenkins

The opinion of the Court was delivered by Mr. Justice Cothran. Action for damages on account of ¡alleged personal injury resulting from a collision between a motorcycle driven by the plaintiff and an automobile driven by the defendant. Verdict for plaintiff, and defendant appeals. Upon the call of the case for trial in the Circuit Court, the defendant moved for a continuance upon the ground that John Scruggs, a material witness, was ¡absent. He had not been subpoenaed for the reason, as counsel orally announced to the Court, that “only a short time before” they had learned that he was out of the State, in North Carolina, and that in the meantime they had been making efforts to locate him without avail, and that for the same reason no deposition had been taken. Counsel for the plaintiff objected to the continuance, and insisted upon a compliance, with rule 27. Counsel for defendant then prepared and submitted to the Court an affidavit by the defendant, containing a statement of what the witness Scruggs would testify if he were present, omitting entirely the other essential elements required by the rule. The Court ruled that the plaintiff must admit that the witness would swear to the facts contained in the affidavit or the case would be continued. Counsel for plaintiff stated that they would admit that the witness, if present, would so testify, but not that the testimony was true. The case was then ordered to trial. As a part of his evidence the defendant offered the affidavit, made by the witness Scruggs on the 30th of September, 1919, 10 days after the collision, totally contradictory of the affidavit by the defendant referred to. Counsel for *325 defendant objected, upon grounds which will be reported. The Court admitted the affidavit of Scruggs, holding: “It is impossible to lay a foundation here, and I think it is an exception to the rule requiring the foundation to be laid. So the objection is overruled, and the paper is admitted, because it was impossible under the circumstances of this case to lay the foundation for contradiction ?” The jury rendered a verdict in favor of the plaintiff, and the defendant has appealed, assigning error in the admission of the affidavit. No other point arises in the case. After a careful investigation of the subject, we have not found a single authority, text-book, or decided case sustaining the admissibility of the evidence. The A. & E. Enc. E., Cyc., Corpus Juris, Ruling Case Law, and cases from Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Mississippi, New York, Ohio, Oklahoma, Tennessee, Virginia, and the Supreme Court of the United States are either directly or with strong impliqation against it. They may be found under the title “Continuance” and in the case of National Council v. Owen, 47 Okl. 464, 149 Pac. 231. Wigmore on Evidence states the admissibility under an ut semble, citing many cases contra, and only one, Hutmacher v. Charleston Consol. R., Gas & Electric Co., 63 S. C. 123, 40 S. E. 1029, as in accord, which does not even inferentially sustain it. The case of Jeter v. Askew, 2 Spear, 637, is nowhere cited to sustain the admissibilty, and is far from doing so. The case of State v. Taylor, 56 S. C. 360; 34 S. E. 939, decides that contradictory statements alleged to have been made by the deceased are inadmissible against the admitted dying declaration upon the ground that the admission would violate the rule which requires the foundation to be laid. If the lack of an opportunity to cross-examine the witness be the basis of the admission of the testimony, it certainly would apply in such a case. *326 The Jeter v. Askew case is one of a decidedly different complexion. There a witness was allowed to give hearsay testimony—what he heard another person say about the plaintiff. Other testimony in reply from other witnesses, of contradictory statements made,by the same person, were admitted and sustained by the Court upon very scant consideration. In the Hutm'acher case, the testimony was allowed under “particular and exceptional circumstances” arising out of the conduct of opposing counsel whereby the other was led to believe that he .would be allowed to contradict the witness by written statement, notice of which had been given when he agreed to admit the statement of what the witness would swear, if present, and assented to by opposing counsel. It impliedly holds that, but for this reservation and notice, and assent, the testimony would not have been admissible. The rule is forcibly expressed in 30 A. & E. Enc. b. 1126: “Where a continuance is sought to procure the attendance of an absent witness, and the adverse party, to avoid the postponement, admits that the witness will testify as stated in the affidavit filed for the purpose, the evidence thus given cannot be discredited on the trial by proof of contradictory statements. The party making the admission cannot be allowed to extricate himself from a situation created by his own voluntary act, in disregard of fixed rules of practice and evidence." The plaintiff was not compelled to admit anything; he admitted the statement to secure an immediate trial, a matter presumably of advantage to him; he must assume with it the concomitant disadvantages. He could have reserved the right to contradict the witness, and, if the defendant agreed to accept the admissions with this reservation, he could, not afterwards object. It is entirely conceivable that, if the defendant had been notified of the sworn statement of the witness, so flatly contradicting his own affidavit of what he would swear, he would have perferred to go to *327 trial without his affidavit, and be spared the withering effect of the prior affidavit. The judgment of this Court is that the judgment of the Circuit Court be reversed and the case remanded to that Court for a new trial.