Minnick v. Lee , 174 Ga. App. 182 ( 1985 )

Carley, Judge.

Appellants Minnick were the plaintiffs below in this suit based on their son’s death. He was killed while riding as guest passenger in an MG automobile that struck the back of a parked Byrd tractor-trailer truck on Interstate 95. The evidence shows the Byrd truck, the driver of which was appellee Lee, had become disabled and remained by the roadside all night with another Byrd truck, driven by appellee Phillips, parked behind it. Lee’s truck was, according to some expert evidence, parked three to eight inches off the highway. According to other expert testimony, however, it was parked partly on the highway. Phillips’ truck was parked off the highway and surrounded by red warning flashers. The collision occurred about 6:30 a.m. Apparently both occupants of the car died instantly. Both truck drivers were asleep at the time. Thus, there were no eyewitnesses to testify how the collision occurred. Appellee Phillips was granted a directed verdict. The jury returned a verdict for the remaining appellees.

1. A pre-trial order was entered in the instant case on February 22, 1984, the day after the jury had been selected and the day before testimony began. That order provided that no witness would be called whose name and address had not previously been furnished to the other side. Later that same day, appellants discovered for the first time the existence of a potential expert witness in the area of collision reconstruction, Sergeant Crawford of the Georgia State Patrol. On February 23, 1984, before any witness had been called in the case, appellants informed the court that a potential expert witness had just been found who would probably be called as a rebuttal witness and possibly in their case-in-chief. Appellants offered to make Sergeant Crawford available to appellees and appellees’ counsel actually talked with the prospective witness on that day. However, the trial court ruled that appellants would not be allowed to call Sergeant Crawford as a witness in their case-in-chief. With regard to calling him as a rebuttal witness, the trial court stated: “Well, I think [he] would still be excluded .... I’ll rule on it whenever . . . when and if he is called.”

Thereafter, appellants did call Sergeant Crawford as a rebuttal witness. A proffer of his testimony was made outside the presence of the jury. That proffer demonstrated that Sergeant Crawford’s testimony was relevant to a crucial issue in the case, to wit: the location of the disabled parked truck of appellee Lee. Although appellants’ original expert had testified to this issue in the case-in-chief, appellees’ expert had given substantial testimony as to his opinion that the Lee truck was on the untraveled portion of the highway at the time of the collision. The proffer of Sergeant Crawford’s testimony demonstrated that, based upon his examination of the scene and his experience and expertise in accident reconstruction, it was his opinion that the Lee truck had been situated at least a foot to two feet inside the traffic lane. Thus, his testimony was diametrically opposed to the opinion evidence that had been given by appellees’ expert.

After this proffer, the trial court found that “the testimony of the witness ... is basically a summary of the testimony given by [another expert witness for appellants] and it is [cumulative] and it is not rebuttal in nature. And the court rules that his testimony will not be allowed in this case.” Further, the court ruled: “Well, if you all had discovered this witness in a reasonable time in advance of the trial, then I would have allowed you to call him as a witness, but as it is, I will stick by the pre-trial order.”

Appellants enumerate as error the trial court’s refusal to allow them to call Sergeant Crawford as a witness. We will first address the correctness of the ruling disallowing the calling of the witness for purpose of rebuttal.

With regard to the trial court’s characterization of the proffered testimony as not being “rebuttal in nature” because it was cumulative, the case law is clearly to the contrary. See Walker v. Fields, 28 Ga. 237 (1859). In dealing with the right of a party to introduce rebuttal evidence, the Supreme Court, relying upon Bryan v. Walton, 20 Ga. 480 (7) (1856) has held: “ ‘Plaintiff had made out a prima facie case; it had been assailed vigorously by the defendant, and the purpose of this proof was to fortify [plaintiff’s position] thus attacked. It was, we apprehend, competent to do so. It is a matter of every-day practice in the courts.’ ” Bray v. Latham, 81 Ga. 640, 643 (8 SE 64) (1888).

The other reason assigned by the trial court for the rejection of the proffered rebuttal evidence was its adherence to the pre-trial order. Based upon the existence of a pre-trial order similar to that in the instant case, Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582 (227 SE2d 77) (1976) held there was not abuse in the trial court’s discretion in excluding rebuttal testimony. However, the explanatory language of the opinion underlying the holding in Reynolds serves to show the distinctions between Reynolds and this case: “The rule should obviously be more leniently applied in the case of rebuttal witnesses, where last minute decisions on whether to offer impeaching or contradicting evidence are the rule rather than the exception. But the court does have some discretion in the matter. In this case we note two points. The witnesses were employees of the defendant with whose knowledge of the facts it had shown prior familiarity. And while the defense proper closed on one day, the witnesses were not offered until the next, no effort was made to notify the plaintiff in advance or to move for amendment of the pre-trial order. Since the evidence offered contradicted the plaintiff’s testimony only circumstantially, if at all, we will not interfere with the trial judge’s discretion.” Allstate Ins. Co. v. Reynolds, supra, 587-588.

In the case at bar, unlike Reynolds, Sergeant Crawford was not a person “with whose knowledge of the facts [appellants] had shown prior familiarity” and the appellants notified the court of the need for presentation of the testimony of the witness as soon as his identity was known. As noted previously, the witness was made available to counsel for appellees, and counsel for appellees actually talked with him. More importantly, the testimony of Sergeant Crawford was, as noted above, most relevant to a crucial issue in the case. Since appellants had the burden of proof in the case, the use of a qualified expert, who would give rebuttal testimony diametrically opposed to that given by appellees’ expert, was a very effective trial tactic which appellants’ counsel would have been remiss in failing to invoke.

Under the circumstances in the instant case, to uphold the ruling of the trial court would be to elevate a pre-trial order to an almost unassailable position of conclusive sanctity even in the face of the statutory mandate that “[t]he object of all legal investigation is the discovery of truth . . . .” OCGA § 24-1-2. The language of OCGA § 9-11-16 (b) provides that the pre-trial order is to control “unless modified at the trial to prevent manifest injustice.” (Emphasis supplied.) There is nothing in this statutory mandate to indicate that a motion must be made by a party. The trial court controls the proceedings and it is its duty, with or without motion, “to prevent manifest injustice.” In view of the chronology of events which existed in the instant case, we find the failure of the trial court to modify the pre-trial order so as to allow the witness to testify in rebuttal constituted an abuse of discretion requiring reversal and a new trial.

Since the case must be retried as the result of the erroneous refusal to allow appellants to call Sergeant Crawford as a rebuttal witness, the issue of whether it was also reversible error to refuse to allow him to be called in their case-in-chief is moot.

2. Appellants assert that, over their objection a witness for appel-lees was erroneously allowed to give testimony based on speculation. Our review of the record demonstrates that appellants’ characterization of the contested testimony as “speculation” appears to be well taken. “Admission of evidence of a speculative or conjectural nature over objection on that ground is error.” Bankers Health &c. Ins. Co. v. Fryhofer, 114 Ga. App. 107 (2) (150 SE2d 365) (1966). However, since the instant case must be retried for the reason discussed in Division 1, we need not decide whether the admission of the speculative testimony was harmful error and, therefore, constitutes an independent ground for reversal. Should similar testimony be offered at retrial, an objection that it is speculative should be sustained.

3. Appellants contend the trial court erred in refusing to charge certain Interstate Commerce Commission (ICC) trucking regulations, which they assert would clearly establish negligence per se on the part of both truck drivers. However, the appellants failed to submit these requests to charge in accordance with the pre-trial order or local court rules. Hubacher v. Volkswagen Central, 164 Ga. App. 791 (298 SE2d 533) (1982); Gwinnett Commercial Bank v. Flake, 151 Ga. App. 578 (260 SE2d 523) (1979). Moreover, the ICC regulations were not properly proved and pled. Davis v. Gen. Gas. Corp., 106 Ga. App. 317 (126 SE2d 820) (1962).

4. The grant of a directed verdict to the second truck driver, ap-pellee Phillips, was proper, as there was no evidence of actionable negligence on his part. OCGA § 9-11-50 (a). In general, the evidence showed that the driver of the automobile took no evasive action, left no skid marks, and never struck the Phillips truck but crashed into the back of Lee’s truck, which was disabled and could not be moved from where it was parked. There being no evidence of negligence on Phillips’ part, a directed verdict was proper as to him.

Judgment affirmed in part and reversed in part.

Banke, C. J., McMurray, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs specially. Deen, P. J., Birdsong, P. J., and Sognier, J., dissent.