Kindred v. Columbus Country Club
| Docket Number: | 2003-CA-00045-COA Linked Case(s): 2003-CT-00045-SCT2003-CT-00045-SCT2003-CT-00045-SCT |
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| Oral Argument: | 05-11-2004 | |
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| Supreme Court: | Opinion Link Opinion Date: 09-08-2005 Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Rebuttal witnesses - Discovery violation - Intervening cause instruction Judge(s) Concurring: King, C.J., Bridges and Lee, P.JJ., Myers, Griffis, JJ. Non Participating Judge(s): Chandler and Barnes, JJ. Concurs in Result Only: Ishee, J. Procedural History: Jury Trial Nature of the Case: CIVIL - WRONGFUL DEATH Writ of Certiorari: Granted Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 09-05-2002 Appealed from: Lowndes County Circuit Court Judge: Lee J. Howard Disposition: JURY VERDICT AND JUDGMENT IN FAVOR OF COLUMBUS COUNTRY CLUB, INC. ON ALL ISSUES. CASE DISMISSED WITH PREJUDICE. Case Number: 2000-0156CVI |
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| Note: | The Court of Appeals' decision was affirmed by the Supreme Court on September 8, 2005. | |
| Party Name: | Attorney Name: | |||
| Appellant: | JIM KINDRED, INDIVIDUALLY, AS WRONGFUL DEATH BENEFICIARY, AND ON BEHALF OF THE ESTATE OF DIANA KINDRED, DECEASED |
JIM WAIDE
LUTHER C. FISHER |
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| Appellee: | COLUMBUS COUNTRY CLUB, INC. | JEFFREY DEAN LEATHERS MICHAEL D. GREER ORLANDO RODRIQUEZ RICHMOND |
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| Topic: | Wrongful death - Rebuttal witnesses - Discovery violation - Intervening cause instruction |
| Summary of the Facts: | Jim Kindred filed a wrongful death lawsuit against the Columbus Country Club, Inc., in which he alleged that the Country Club's negligence was the proximate cause of his wife's death because a major portion of a tree on the Country Club's property fell across the Kindred's car. The jury found that the Country Club was not liable for the death of Kindred’s wife. Kindred appeals. |
| Summary of Opinion Analysis: | Issue 1: Rebuttal witnesses After Kindred and the Country Club had concluded their cases, Kindred sought to call three witnesses in rebuttal, Cathy Bailey, James Traywick, and Jay Jordan, III. Kindred's desire to call Jordan was conditioned upon his being allowed first to call Bailey and Traywick. The court refused to allow Bailey and Traywick to testify, because the witnesses had not been disclosed to the defense prior to trial and were not listed on the pretrial order. Kindred argues that he should have been allowed to call Traywick because the Country Club failed and refused to disclose during discovery that Traywick had done work on the tree and that he could not disclose the identity of the witness because he had no knowledge of the witness until the witness showed up at the courthouse. Considering the facts, the judge did not abuse his discretion in not allowing the witnesses to testify. First, it is only an assumption on Kindred's part that the witness, Traywick was telling the truth. Second, even assuming the truth of Traywick's story about cutting the tree limbs and of how he came to testify during the trial, it is dispositive of this issue that Traywick did not appear to have any direct, personal knowledge of the alleged conversation between his boss and whomever his boss allegedly spoke with about the condition of the tree. Although Kindred argues that Traywick's testimony was rebuttal evidence which should have been admitted, these witnesses were offered in an attempt to bolster Kindred's faltering case, not to refute specific testimony given during the defense's case. Issue 2: Discovery violation Kindred argues that the Country Club failed to disclose Traywick's identity during discovery and that this conduct on the part of the Country Club justifies the grant of a new trial. The problem with this argument is that it assumes the truth of what Traywick said. Although he may have been telling the truth, there is no evidence other than his testimony. On these facts, the court did not abuse its discretion when it did not grant a new trial. Kindred also argues that the judge erred in not granting a new trial as a sanction for what he terms the intimidation of one of Kindred's witnesses. Although it was improper to attempt to prevent the witness from testifying by suggesting that the witness might be arrested if he did so, Kindred was not prejudiced since the witness testified anyway. Issue 3: Intervening cause instruction Kindred argues that the court erred in granting an instruction which characterized an act of God, the storm, as a superceding intervening cause. An appellate court will not reverse on a jury instruction issue if the instructions fairly announce the law of the case and create no injustice when read as a whole. In addition to giving the instruction about which Kindred complains, the court also gave an instruction submitted by Kindred regarding an act of God. The jury instructions fairly announced the law in this case. |
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