Dickens v. Adams

• Decision Date: 27 January 1976
• Docket Number: 51670,Nos. 51669,No. 3,s. 51669,3
• Citation: 137 Ga.App. 564,224 S.E.2d 468
• Parties: Nancy DICKENS v. Ida J. ADAMS. Nancy DICKENS v. Clark ADAMS
• Court: Georgia Court of Appeals

Page 468

224 S.E.2d 468

137 Ga.App. 564

Nancy DICKENS v. Ida J. ADAMS.

Nancy DICKENS v. Clark ADAMS.

Nos. 51669, 51670.

Court of Appeals of Georgia, Division No. 3.

Jan. 27, 1976.

Rehearing Denied Feb. 12, 1976.

Hirsch, Beil & Partin, John P. Partin, Columbus, for appellant.

Kelly, Champion, Denney & Pease, Ernest Kirk, II, Columbus, for appellees.

WEBB, Judge.

Mr. and Mrs. Adams filed separate suits, which were consolidated for trial before a jury, for damages arising out of an automobile collision alleged to be caused by the negligence of Mrs. Dickens. Mrs. Adams' suit was for personal injuries, lost wages and pain and suffering resulting from the collision, and Mr. Adams' was for medical expenses incurred, damage to his automobile and loss of consortium. Mrs. Dickens appeals the verdicts and judgments in favor of both plaintiffs.

1. Mrs. Dickens' first enumeration of error concerning the failure of the trial court to invoke the rule of sequestration of witnesses against the plaintiffs Mr. and Mrs. Adams is without merit. "The trial judge has no right to exclude from the courtroom, during the taking of testimony, a party to the case on trial. (Cits.) It is a matter entirely within the discretion of the trial judge as to whether he will require that the testimony of a party to the case be taken before the taking of the testimony of the party's witnesses. Tift v. Jones, 52 Ga. 538(4).' It does not appear that this discretion was abused in the instant case.' Cone v. Davis, 66 Ga.App. 229, 238(14), 17 S.E.2d 849, 856.

2. The trial court did not err in permitting the investigating officer to testify in regard to the visibility and legibility of the 'stop' sign painted on the pavement at which Mrs. Dickens failed to stop just prior to the collision.

Mrs. Dickens testified that the stop sign was covered by sand and so obscured that she did not see it. The officer testified, by way of deposition read into the record, that he could see the stop sign at the time of the accident, and that two days later he returned in his own vehicle and again saw he stop sign. Mrs. Dickens' attorney objected to further testimony 'about this test' without laying a proper foundation. The trial court then permitted the Adams' attorney to ask the officer whether he could see the stop sign, to which the officer replied affirmatively.

It is apparent from the transcript that counsel never asked the officer whether he had performed a test and that the information which was objected to was gratuitously volunteered. Since the officer had previously testified that the stop sign was visible on the day of the accident and that testimony was not objected to, any error in permitting him to answer the question again was harmless in view of his prior testimony and that of other witnesses to the same effect. Eiberger v. Martel Electronic Sales, 125 Ga.App. 253, 256(6), 187 S.E.2d 327 and cases cited.

3. The testimony of Dr. Foster, Mrs. Adams' psychiatrist, about conversations he had with her during the course of treatment was not inadmissible as hearsay. This witness was not expressing a belief as to the truth or falsity of the statements made by Mrs. Adams, but was merely expressing the basis for his professional opinion concerning the cause of his patient's anxiety and depression. As such, this testimony was admissible. Fields v. State, 221 Ga. 307, 144 S.E.2d 339; Argonaut Insurance Co. v. Allen, 123 Ga.App. 741, 182 S.E.2d 508.

4. There was likewise no error in permitting Dr. Foster to answer a hypothetical question which assumed that Mrs. Adams was disabled from her injuries and the anxiety and depression caused thereby, and unable to work from the time of the accident on March 13, 1973, until October 1, 1974.

The question did not require the psychiatrist to assume facts not in evidence in regard to the period of disability. Mrs. Adams testified that she did not return to work until that date. The fact and extent of her injuries were extensively set forth in the testimony of Drs. Taylor, Hughston, Andrews, Elkins and Foster, who treated her. Dr. Andrews, an orthopedic surgeon, stated that he did not wish her to return to work until her fractures healed and that the first time the ulna appeared to be healed sufficiently to undertake her normal activities was in December, 1974. Dr. Foster testified that through April, 1975, her injuries and anxiety decidedly interfered with her capability to work. Further testimony established that Mrs. Adams will never fully recover from the effect of her injuries and that should a wrist fusion operation become necessary as arthritic pain develops, which is probable in her case, the disability would increase to 80 or 90 percent to her left arm as a whole.

The evidence amply supported an assumption that Mrs. Adams was unable to return to work until on or about October 1, 1974.

5. It is contended that Clark Adams was erroneously allowed to express his opinion of the fair market value of his automobile immediately before and after the collision on the grounds that insufficient foundation had been laid for his opinion and that it was partially based on hearsay. This contention is without merit.

'Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity for forming a correct opinion.' Code § 38-1709. Thus, 'Anyone may testify as to value if he has had an opportunity for forming a correct opinion. Code § 38-1709. The competency of the witness on this subject is usually for the court; his credibility is for the jury. Central Ga. Power Co. v. Cornwell, 139 Ga. 1(1), 76 S.E. 387 (AC 1914A 880).' Cordell Ford Co. v. Mullis, 121 Ga.App. 123, 124, 173 S.E.2d 120, 122.

On direct examination Mr. Adams related the make and model of his automobile; the date it was purchased; that it was purchased new and not used; the purchase price paid; the purpose for which it was used; that he and Mrs. Adams each used it approximately 50% of the time; the approximate mileage at the time of the collision; that it had not been involved in a prior collision; that he drove it the day before the collision; that it appeared in perfect condition; that he had experienced no mechanical problems; that he saw it the day after the collision; what the damages to it were; and that it had been repaired. He further stated that he had checked evaluations with various automobile dealers and over appellant's objection estimated the reasonable market value of the automobile just prior to the collision to be $1,450.

" It is no objection to the evidence of a witness testifying as to market value that such evidence rests on hearsay.' 1 Wharton Evidence, (I), § 449.' Landrum v. Swann, 8 Ga.App. 209(1), 68 S.E. 862. Mr. Adams clearly established a sufficient foundation to properly express his opinion as to the fair market value of the...