Clayton County Bd. of Ed. v. Hooper

• Decision Date: 03 April 1973
• Docket Number: No. 2,No. 47954,47954,2
• Citation: 198 S.E.2d 373,128 Ga.App. 817
• Parties: CLAYTON COUNTY BOARD OF EDUCATION v. Billie H. HOOPER
• Court: Georgia Court of Appeals

Page 373

198 S.E.2d 373

128 Ga.App. 817

CLAYTON COUNTY BOARD OF EDUCATION v. Billie H. HOOPER.

No. 47954.

Court of Appeals of Georgia, Division No. 2.

April 3, 1973.

Rehearing Denied April 18, 1973.

Ross & Finch, I. J. Parkerson, Malcolm P. Smith, Atlanta, for appellant.

Albert B. Wallace, Jonesboro, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Mrs. Billie H. Hooper sued Clayton County Board of Education and Bluebird Body Co. for injury and damage arising out of a collision of a motor vehicle driven by Mrs. Hooper and a school bus owned and operated by the board of education. The body of the school bus was designed and manufactured by the defendant Bluebird Body Co. The defendants answered, denying the material portions of the complaint. After completion of discovery the case came on for trial, and the court directed a verdict in favor of the Bluebird Body Co. Thereafter, verdict was returned by the jury in favor of the plaintiff and judgment was duly entered thereon. The defendant board of education filed its motion for new trial which was later amended, heard, and overruled. Defendant appeals from the judgment awarding damages, enumerating error on the overruling of its motion for new trial. Held:

1. Error is enumerated on the court's charge to the jury on future hospitalization and medical expense because there was no evidence authorizing such charge. An examination of the evidence shows that no evidence was presented from which the jury could ascertain, except by mere conjecture and speculation, that the plaintiff would ever have any such future expenses. The charge of the court was, therefore, erroneous. See Georgia Power Co. v. Watts, 56 Ga.App. 322, 192 S.E. 493; Hughes v. Brown, 109 Ga.App. 578, 579, 136 S.E.2d 403; Leonard v. Kirkpatrick, 118 Ga.App. 277, 163 S.E.2d 340. Of course, prospective medical expenses which are authorized by the evidence are recoverable in this state. Peak v. Cody, 113 Ga.App. 674(4), 149 S.E.2d 519; Daugherty v. Vick, 127 Ga.App. 767, 195 S.E.2d 208. The only testimony remotely touching this subject is found in the doctor's testimony that there would possibly be a charge of $50 more for X-rays to be taken in the future, with no testimony whatever on future hospitalization. The erroneous charge of the court requires the grant of a new trial.

2. The second enumeration of error contends the court erred in charging on future pain and suffering because the plaintiff testified at the trial that she was free of neck pain at that time. However, she also testified that she was suffering discomfort from other injuries; and her doctor testified that it was too early to tell whether the operation on her neck was such a complete success as to insure that she would thereafter be free of pain; and it would be from four to six months before he could tell 'the final results from the surgery . . . I wouldn't be surprised if she might have a residual degree of nagging, aggravating and occasional pain.' Plaintiff was wearing a brace on her neck and was to continue to wear same. This was ample evidence to indicate that plaintiff in the future, would have to endure pain and suffering. There was no error in the charge on this subject.

3. Error is enumerated on the admission in evidence of certain testimony by plaintiff's doctor as to plaintiff's medical history. But this evidence was not offered as original evidence to prove the contents of plaintiff's statements to her doctor, but was soley to explain why he took certain action as a result of her relating these facts to him. Code § 38-302 provides that conversations, etc. may be admitted in evidence to explain conduct and ascertain motives, and in such case, they are received, not as hearsay, but as original evidence. Also see Paulk v. Thomas, 115 Ga.App. 436, 154 S.E.2d 872. The general rule as to excluding medical history as hearsay is not in point. Two cases dealing with the general rule-and not in point here-are Perkins v. Perkins, 227 Ga., 177, 179 S.E.2d 518; Sapp v. Kitchens, 124 Ga.App. 764, 186 S.E.2d 121. Further, the objection made by defendant was not complete. The court, in ruling on the objection, announced that he would overrule the objection 'at this time,' and thereafter the objection was never renewed. Failure to renew objection to the conditional admission of evidence affords no basis of appeal. Gibson v. State, 178 Ga. 707, 708, 174 S.E. 354.

4. Plaintiff had been treated for an earlier spinal injury by a Dr. Wood, whose deposition was taken prior to the trial by plaintiff. But Dr. Wood was most uncooperative, and during the taking of his deposition, refused to continue with same, and obtained an injunction to stop the taking of same until he was paid for said deposition. During the trial defendant offered in evidence a part of Dr. Wood's deposition; and plaintiff then offered other parts of said deposition in rebuttal. Defendant objected and enumerates error, contending that the part of deposition offered by plaintiff was not in rebuttal.

Code Ann. § 81A-132(a)(5) (Section 32, CPA; Ga.L.1966, pp. 609, 644; 1972, pp. 510, 521) provides that where part of a deposition is offered by one party, the adverse party may require said party to introduce all of the deposition that is relevant to the part introduced; and may himself introduce any other part of said deposition. Further, said part offered by plaintiff was admissible to prove the state of the witness' feeling toward plaintiff, which is always a proper matter of proof. Code § 38-1712. Once the doctor was shown to have hostile feeling towards plaintiff, such reflected on his...