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Carey v. Bryan and Rollins

Superior Court of Delaware, Sussex County

May 6, 1954

CAREY
v.
BRYAN & ROLLINS.

Proceeding to recover workmen's compensation for injuries sustained when a motor vehicle which claimant was driving ran off road and struck telephone pole. The Industrial Accident Board entered an award favorable to claimant, and his employer appealed. The Superior Court, Herrmann, J., held that where claimant had testified upon direct examination regarding details of the accident in which he sustained injuries for which he claimed compensation, question whether claimant, during course of evening in question, had anything to drink with alcohol in it, was proper cross-examination and of extreme importance in view of fact that a claimant whose injuries result from intoxication is not entitled to compensation benefits, and the Board erred in permitting claimant to refuse to answer such question.

Award reversed and cause remanded.

Page 202

[48 Del. 397] Robert W. Tunnell and Arthur D. Betts (of Tunnell & Tunnell), Georgetown, for claimant-appellee.

Houston Wilson, Georgetown, for employer-appellant.

HERRMANN, Judge.

The claimant seeks workmen's compensation for injuries sustained when a motor vehicle, which he was driving, ran off the road and struck a telephone pole.

During the hearing before the Industrial Accident Board, the claimant testified upon direct examination regarding details of the accident in which he sustained the injuries for which he now claims compensation. The following exchange took place during cross-examination of the claimant:

‘ Q. Now during the course of that evening did you have anything to drink that had alcohol in it?

‘ Mr. Tunnell: I object to that unless Mr. Wilson can produce evidence. Why, that question is just one conceived to embarrass [48 Del. 398] and insult the witness. I don't believe he has any testimony to that effect and, if so, he should state it to this Court.

‘ Mr. Wilson: It so happens that the testimony did. But nevertheless,--

‘ Mr. Tunnell: (interrupting) You don't have it.

‘ Mr. Wilson: Nevertheless, I can still ask this man and he can give me the answer.

‘ Mr. Tunnell: You can't ask a man if he has been in jail, unless you think he has and can prove it. You can't ask him if he was drunk unless you have evidence that he was drunk.

‘ Mr. Wilson: I insist upon my right to ask this witness whether or not he had anything to drink that evening with alcohol in it.

‘ The Chairman: The Board rules that Mr. Carey, at his own discretion, may answer the question.

‘ Mr. Tunnell: Do you understand what the Board tells you? They say you may in your own discretion answer that question or not answer, as you see fit. You may say ‘ I refuse to answer,’ or you may answer in your own discretion.

‘ The Witness: I just refuse to answer.

Page 203

‘ Q. What was the position? A. I refuse to answer.

‘ Q. You refuse to answer whether or not you had anything to drink during the course of that evening with alcohol in it, is that my understanding? A. Yes, sir.’

I am of the opinion that the Board erred in permitting the claimant to refuse to answer the question regarding alcoholic beverage. It is not entirely clear that Carey was claiming his constitutional privilege against self-incrimination. It appears that his attorney was claiming for him something akin to a privilege against self-degradation. It is generally recognized that a witness must answer a question, even though to do so will [48 Del. 399] disgrace him, where his testimony on the point is material to the issue. See 58 Am.Jur. ‘ Witnesses' § 35. The question was proper cross-examination and the claimant should have been compelled to give his answer.

Even if we assume that the privilege against self-incrimination was properly claimed by Carey, personally[1] and clearly, there was error in allowing the privilege. It is well established that when a witness testifies as to a fact or incident without invoking his privilege against self-incrimination, he thereby waives that privilege with respect to the details and particulars of the fact or incident. See U. S. v. St. Pierre, 2 Cir., 132 F.2d 837,147 A.L.R. p. 255, et seq.

There are two reasons usually given to support this theory of waiver of the privilege against self-incrimination. First, in the interest of justice, the trier of fact is entitled to a full statement of the witness' knowledge of matters concerning which he testifies. Thus, when a witness has sworn to tell the whole truth and has commenced to testify as to a fact or incident within his knowledge, he cannot be permitted to withhold particulars thereof under a claim of privilege made for the first time upon cross-examination. Secondly, when a witness commences to testify as to a fact or incident without asserting his privilege, he must be deemed to have done so with knowledge that a full disclosure of the particulars thereof would tend to incriminate him. ...


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