Cassano v. Pilgreen's, Inc., 43176

• Decision Date: 16 February 1968
• Docket Number: No. 2,No. 43176,43176,2
• Citation: 160 S.E.2d 439,117 Ga.App. 260
• Parties: Joseph W. CASSANO v. PILGREEN'S, INC
• Court: Georgia Court of Appeals

Page 439

160 S.E.2d 439

117 Ga.App. 260

Joseph W. CASSANO v. PILGREEN'S, INC.

No. 43176.

Court of Appeals of Georgia, Division No. 2.

Feb. 16, 1968.

Oze R. Horton, Hapeville, for appellant.

Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, Warner R. Wilson, Jr., Atlanta, for appellee. Syllabus Opinion by the Court

WHITMAN, Judge.

1. The main question presented for decision in this case is whether the court erred in granting the motion for nonsuit. Plaintiff's negligence action alleged, among other things, that the defendant restaurant served him unwholesome food and that, as a consequence, he was made violently ill and received permanent injuries.

At the trial the only admissible evidence introduced by the plaintiff in support of his action was the plaintiff's own testimony that he, without having eaten any food previously throughout the day and not having been ill beforehand, ate food served him by defendant and, as a consequence, was within a few hours made violently ill and permanently injured to the extent that he 'staggers', which injury caused the loss of his produce business and has rendered him generally unemployable.

'(P)roof by one claiming to have been injured by eating food furnished to him at a public restaurant or 'delicatessen,' merely that he ate the food and in consequence became sick, would not, without more, establish the averment that the food was unwholesome.' McPherson v. Capuano & Co., 31 Ga.App. 82(2), 121 S.E. 580.

Whether the food was unwholesome or whether plaintiff's illness and injury were caused by unwholesome food, who could say? There was no medical testimony. The evidence left the matter purely to surmise and supposition. The evidence was entirely circumstantial and, even when construed most strongly in the plaintiff's favor, it does not exclude every other reasonable hypothesis as to the cause of plaintiff's illness and injury and would not have supported a recovery. Payton v. Lee, 88 Ga.App. 422, 77 S.E.2d 77. Where the evidence would not have supported a recovery a nonsuit will not be reversed. Maddox v. Clark, 214 Ga. 575, 577, 106 S.E.2d 34.

The trial court did not err in granting the defendant's motion for nonsuit.

2. It was not error to sustain defendant's objection to a copy of a hospital record tendered into evidence under Code Ann. § 38-711 (Ga.L.1952, p. 177). If a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based. See Martin v. Baldwin, 215 Ga. 293(2)(c), 110 S.E.2d 344; Knudsen v. Duffee-Freeman, v. Lunsford, 106 Ga.App. 154(1), 126 S.E. Inc., 95 Ga.App. 872, 99 S.E.2d 370; Meeks 2d 531.

Even more basic to the admissibility of a writing or a record under Code Ann. § 38-711, supra, is the requirement for preliminary proof as regards the document itself. "The evidence should include identification of the writing or record by a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was...