Granberry v. Gilbert

• Decision Date: 16 April 1964
• Docket Number: 4 Div. 144
• Citation: 163 So.2d 641,276 Ala. 486
• Parties: Henry Vester GRANBERRY v. James P. GILBERT.
• Court: Alabama Supreme Court

Page 641

163 So.2d 641

276 Ala. 486

Henry Vester GRANBERRY v. James P. GILBERT.

4 Div. 144.

Supreme Court of Alabama.

April 16, 1964.

Carl S. Farmer, Abbeville, and J. Hubert Farmer, Dothan, for appellant.

Halstead & Whiddon, Headland, and Lee & McInish, Dothan, for appellee.

COLEMAN, Justice.

This is an appeal by defendant from judgment for plaintiff in an action for personal injury and property damage sustained by plaintiff in an automobile collision.

Defendant argues first his assignment of error 4 which recites as follows:

'4. The trial court erred in overruling the objections of defendant below, appellant herein, to the testimony of Dr. W. E. McDavid Jr., a witness for plaintiff below, appellee herein. (Transcript page 38)'

We copy that part of the examination of Dr. McDavid which defendant sets out in his brief, to wit:

'Q Doctor, did you refer Mr. Gilbert (plaintiff) to a neuro-surgeon?

'A Yes, sir.

'MR. FARMER: We object

'THE COURT: Overrule the objection fot the present.

'Q Did you have a report from the neuro-surgeon?

'A Yes, sir.

'Q Is there any finding or information of any medical knowledge you have now that changed your diagnosis with reference to the brain concussion with possible permanent injury?

'MR. FARMER: We object, if the Court please?

'THE COURT: What are your grounds?

'MR. FARMER: He asked him if he had some kind of written report or something, and on the knowledge, did he change his idea about it.

'THE COURT: He said did he have anything to change his opinion from what he originally had. He included in that question, if he had received any report . . ..

'THE COURT: He hasn't asked him what was in that report.

'MR. FARMER: I know he didn't but I think the question is subject to interpretation or construction that is based on some kind of report.

'THE COURT: As I understand, he asked two questions: He asked did he have some report from the neurosurgeon to whom he referred the patient and he said yes. Then, he asked the question, did he have any information that caused him to change his original opinion as to his condition or injury, is that in substance, the last question?

'MR. HALSTEAD: Yes, sir.

'THE COURT: And that is what you objected to?

'MR. FARMER: The last question, yes, sir.

'THE COURT: Overrule your objection.

'MR. FARMER: We except.

'A No, sir.' (Par. Added.)

Defendant argues that the court erred in permitting the witness to testify as to what were, in substance and effect, the findings and conclusions of another physician, contrary to the rule of Hussey v. State, 87 Ala. 121, 6 So. 420, and Clark v. Hudson, 265 Ala. 630, 93 So.2d 138.

Plaintiff replies that, under Circuit Court Rule 33, the court, before ruling on any objection to testimony, may call on the objector to specify his grounds; and that, in reviewing the ruling on the objection, the appellate court 'must consider only the grounds of objection which are shown to have been clearly specified.' (Emphasis Supplied.)

In Dr. McDavid's testimony, defendant objected to two questions. As we understand defendant's argument, he says that, by the last question, plaintiff obtained from the witness an indirect statement that another doctor agreed with the witness, thus violating the rule against hearsay. The defendant, however, when called on by the court to state his grounds, did not clearly state as one of his grounds that the question called for hearsay.

At the most, defendant can be credited with interposing the so-called general grounds of objection to a question, that is, that the question calls for testimony which is not legal for any purpose and cannot be made legal by other evidence or by otherwise framing the inquiry. Louisville & Nashville R. Company v. Scott, 232 Ala. 284 , 167 So. 572; Harrison v. Baker, 260 Ala. 488, 71 So.2d 284.

Defendant's objection and argument were directed to the last question, that is, whether the witness now has any finding or information that changed his diagnosis. We do not think that the question called for testimony that would be illegal for any purpose. Except for the implied reference to the report of the neuro-surgeon, defendant does not insist that it is illegal or incompetent for a physician to testify that he has no information to cause him to change his diagnosis.

'. . . The objection was general, or, if specific, did not specify the ground covering the objectionable feature of the evidence introduced. A general objection, 'because the same was illegal, irrelevant, and incompetent,' cannot be sustained, unless the evidence is manifestly illegal and irrelevant, and apparently incapable of being 644 rendered admissible in connection with other evidence. Sanders v. Knox, 57 Ala. 83. . . .' Bufford v. Little, 159 Ala. 300, 303, 48 So. 697, 698.

Nowhere did defendant object to either question on the ground that it called for hearsay. Defendant now contends that the evidence was inadmissible because it was hearsay.

In C. C. Snyder Cigar & Tobacco Co. v. Stutts, 214 Ala. 132, 135, 107 So. 73, 75, this court held that an objection to evidence on the ground that it was 'illegal, irrelevant, and immaterial, and because it called for a conclusion," operated as a waiver of the objection as for hearsay, although: 'This testimony was undoubtedly objectionable, because it was but hearsay . . ..'

In the case at bar, we hald that defendant did not specify the ground that the question called for hearsay, and so defendant waived that ground of objection. Having waived it on the...