Drake v. Shurbutt

• Decision Date: 27 September 1973
• Docket Number: No. 3,No. 48598,48598,3
• Citation: 201 S.E.2d 184,129 Ga.App. 754
• Parties: Emily W. DRAKE v. Gloria SHURBUTT et al
• Court: Georgia Court of Appeals

Page 184

201 S.E.2d 184

129 Ga.App. 754

Emily W. DRAKE v. Gloria SHURBUTT et al.

No. 48598.

Court of Appeals of Georgia, Division No. 3.

Sept. 27, 1973.

James M. McDaniel, Decatur, for appellant.

Neely, Freeman & Hawkins, J. Bruce Welch, Atlanta, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Emily Drake filed her complaint against Gloria and James Shurbutt for damages arising from an automobile collision, alleging that she suffered personal injuries and property damage as the result of the negligence of Gloria Shurbutt while operating the automobile of James Shurbutt, her father. The jury returned a verdict for plaintiff in the sum of $2,500, judgment followed, and she appeals. Held:

1. Dr. Atwater, one of plaintiff's treating physicians and qualified by her as an expert, testified on cross examination as follows: 'Q. Doctor, I believe there is one report in there, in your file, which would indicate that her problems would most likely clear if and when her liability case is brought to a conclusion, is that right? A. Partially. I expressed an opinion to someone, I believe Dr. Satcher, that I had advised her to get this thing behind her because of this age old problem where litigation is pending, and I don't think it is an intentional thing on the part of many patients, but their aches and pains continue many times until litigation is finally settled, and then after that is settled you really sometimes know how much is functional and how much is organic in nature. And I believe that was the concept I had when I made such a statement.' Objection was made by plaintiff to this question and answer, and it is insisted that this testimony consisted of conclusions and went beyond the realm of expert testimony.

However, a review of the questioning of Dr. Atwater reveals that he was giving his opinion as to plaintiff's condition and the factors he felt to be relevant thereto. His response was properly admitted since his opinion was based upon his personal observation and examination of his patient and was within the realm of permissible expert medical testimony pursuant to Code § 38-1710. Cf. Lester v. S. J. Alexander, Inc., 127 Ga.App. 470, 472, 193 S.E.2d 860; General Gas Corp. v. Whitner, 110 Ga.App. 878(4), 140 S.E.2d 227.

2. Error is enumerated on a portion of the charge to the jury. However, it does not appear from the record that objection was made at the trial, and we find no substantial error harmful as a matter...