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JOHN WILEY CLARK AND WIFE4/15/1987
mony was not admitted in error, notwithstanding the procedures announced in Harris v. General Host
Corp., No. 55,984, decided 11-12-86 (not yet reported); Boyd v. Lynch, 493 So. 2d 1315 (Miss. 1986); Square D v. Edwards, 419 So. 2d 1327 (Miss. 1982) and Huff v. Polk, 408 So. 2d 1368 (Miss. 1982). In Harris, Justice Robertson wrote:
General Host's claim that Dr. Allen was a `rebuttal witness' profits it nothing. There is nothing in our rules of procedure that authorizes a party to withhold the names of likely expert witnesses on such grounds, except only for the circumstance where the party had no reasonable means of anticipating in advance of trial the need for calling the witness.
Slip opinion, p. 4 [emphasis added]. Here, the need for Dr. Dore to rebut the erroneous testimony of Officer Anglada did not appear until the time of trial. Furthermore, the plaintiffs could not have been surprised by this testimony, because they had already listed him as a witness and knew what his testimony would be. They were also able to rebut Dr. Dore's testimony through the testimony of Dr. Lane. Thus, there is no reversible error here.
II. ADMISSION OF THE BLOOD ALCOHOL TEST.
The blood sample drawn from Bosarge's body was ordered by Officer Anglada of the Highway Patrol, in compliance with Miss. Code Ann. 63-11-7 (1972), which states:
If any person be unconscious or dead as a result of an accident . . . such person shall be subject ed to a blood test for the purpose of determining the alcoholic content of his blood . . . if the arresting officer has reasonable grounds to believe the person to have been driving . . . while under the influence of intoxicating liquor. The results of such test or tests, however, shall not be used in evidence against such person in any court . . . without the consent of the person so tested, or, if deceased, such person's legal representative.
Miss. Code Ann. 63-11-43 (1972) also prohibits the use of a blood test, stating:
Neither results of a chemical test under the provisions of this chapter, nor the fact of submission to or refusal of such test shall
be admissible in a civil case.
When read together, it is obvious that these two statutes are intended to protect the interests of the person submitted to a blood alcohol test, in a civil case. In this case, the results of the test were submitted in defense of the person tested. Furthermore, any protection given by the statute was waived by the decedent's representative. Therefore, it was not error to allow the introduction of the results of this test.
III. DISALLOWANCE OF REBUTTAL TESTIMONY.
The appellants argue here that the trial court erred in not allowing them to present testimony from witnesses Kuykendall and Larson, who were arrested for DUI a few years after Bosarge and told they would have to remain incarcerated for five hours. Additionally, Kuykendall would have testified that he saw Bosarge in Silver's Lounge, intoxicated, on the night of January 9.
The trial court enjoys discretion in the admission of rebuttal evidence. White v. Weitz, 169 Miss. 102, 152 So. 484 (1934). Although the trial court should allow the plaintiff a great deal of latitude in presenting his case, we cannot say that the trial judge in this case abused his discretion in excluding the evidence in question. Pascagoula Police testified that five hours was a guideline, not a rule, and that the guideline was applied subjectively, depending upon the circumstances. The fact that Kuykendall and Larson were told three or four years later that they would have to remain in jail for five hours w
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