Harrison v. Lawhorne

• Decision Date: 29 October 1973
• Docket Number: No. 2,No. 48384,48384,2
• Citation: 130 Ga.App. 314,203 S.E.2d 292
• Parties: David M. HARRISON v. Jene E. LAWHORNE
• Court: Georgia Court of Appeals

Page 292

203 S.E.2d 292

130 Ga.App. 314

David M. HARRISON v. Jene E. LAWHORNE.

No. 48384.

Court of Appeals of Georgia, Division No. 2.

Oct. 29, 1973.

Rehearing Denied Nov. 27, 1973.

Swift, Currie, McGhee & Hiers, George W. Hart, Atlanta, for appellant.

Candler, Cox & Andrews, Edward Andrews, E. Lewis Hansen, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal from the denial of a motion for new trial by a defendant motorist against whom a verdict was obtained by his guest passenger as plaintiff is limited to special grounds contained in the amendment to the new trial motion. These allege errors in overruling defendant's objections to evidence and in the charge to the jury. As originally filed the usual general grounds were included but not contained in the enumerations of error as appellant's counsel recognized these were issues for determination by the jury.

1. The first enumeration of error attacks the court's ruling in admitting documents which purported to be time records kept by plaintiff's employer, the Internal Revenue Service, as to her attendance and absences on her government job. This enumeration also attacked the court's ruling which permitted one of her fellow employees to testify from these records. Two witnesses from the IRS testified concerning their direct knowledge as to the entries made on these records including their supervision of the accuracy and calculation thereof. It was further shown that the original writings were sent to the government's data center in Detroit where the written reports are reduced to microfilm.

Whether regarded as primary evidence or secondary evidence, this evidence was properly admitted.

If regarded as primary evidence it came in the category of a witness having personal knowledge of the facts from which the records were made. As stated in Headnote 2 of Villa Rica Mfg. Co. v. General American Life Insurance Co., 55 Ga.App. 328(2), 190 S.E. 49: 'As a general rule, the testimony of one who has knowledge of the facts from which books of account are made up is primary evidence as to those facts.' See also Bridges v. Mutual Benefit etc. Ass'n, 49 Ga.App. 552, 176 S.E. 543.

The basis for admitting these documents as secondary evidence is due to the original being regarded as inaccessible. Bowden v. Achor, 95 Ga. 243, 260, 22 S.E. 254; Silvey v. Wynn, 102 Ga.App. 283, 115 S.E.2d 774; and Bedgood v. State, 100 Ga.App. 736, 112 S.E.2d 430. As is stated by Professor Green in his treatise, Georgia Law of Evidence, p. 261 § 108: 'Secondary evidence will be received of the contents of a writing which is beyond the boundaries of Georgia. It seems that a showing of possession of the original by a third person outside the State is sufficient without any effort to obtain it.' Additionally, it should be noted that '(I)t is settled that whether the showing made to admit (the) secondary documentary evidence and to account for the original writing is sufficient is within the sound discretion of the trial judge, and that his decision in this regard will not be disturbed by this Court unless that discretion is manifestly abused.' Williams v. American Surety Co., 83 Ga.App. 66, 68, 62 S.E.2d 673, 675.

Appellant argues that the evidence was inadmissible under our rulings in the cases of Pitman v. Dixie Ornamental Iron Co., 122 Ga.App. 404, 177 S.E.2d 167 and Photographic Business & Product News v. Commercial Color Corporation, 122 Ga.App. 825, 178 S.E.2d 922. Both cases dealt with the admissibility of photo copies. In the Pitman case Headnote 2(b) on p. 406 of 122 Ga.App., 177 S.E.2d 167 says the rejection of the photostatic copies of the bank statements was due to an absence of a showing as to these being correct copies and because there was no showing of a foundation for their admission as business records of the bank. In that case, however, in the preceding Headnote which is 2(a), our court ruled that the photostatic copies of the checks sought to be introduced should have been admitted irrespective of whether a proper foundation had been laid for their admission under the business records statutes because 'any copy of the original identified as a correct copy, is admissible in evidence in lieu of the original.' This latter ruling applies to the evidence sub judice.

In the second case the rejection of a xerox copy of a letter was due to the failure to account for the original writing and the absence of any evidence that it was 'kept and made in the regular course of business and that photocopy was made to preserve it permanently so as to authorize its admission under Code Ann. §§ 38-710 and 38-711.' Our reading of the trial transcript leads us to the conclusion that these codal requirements were met. The testimony of the supervisor contained in pages 276 to 284 show that (1) the original entry was made in the regular course of business; (2) that it was the regular course of business to make such memorandum or record at the time of the event or within a reasonable time thereafter; (3) that the reproduction was made in the regular course of business; and (4) that such reproduction was made to preserve it permanently. Our construction is in accord with the liberal interpretation of Code Ann. § 38-711 which was stated to be the legislative intent by the declaration contained in Ga.L.1958, pp. 542, 543.

2. The next three enumerations of error deal with the admission over objection of certain portions of the testimony of a toxicologist employed by the State Crime Laboratory who was used as an expert witness by plaintiff. The three items in her testimony contended to be error were that (a) the test used by her in making the analysis of the blood alcohol was the 'normal blood alcohol test used in the Georgia State Laboratory,' (b) her findings 'that the blood of defendant contained alcohol in the concentration of 150 milligrams of ethyl alcohol per 100 c.c.,' and (c) that as an expert witness the results of the test indicated to her 'that there was enough alcohol in that subject's blood to make it unsafe for him to drive a motor vehicle, among other things.' Enumeration No. 6 attacks the admission of the microfilm record of this blood sample. All four of these assignments involve the same legal considerations and will therefore be considered in this division.

The attorneys representing the appellee have stressed in their brief that in presenting the microfilm record and the evidence of this witness as an expert and not in an official capacity that 'plaintiff followed very closely the direction of the court in the case of Elliott v. Leavitt, 122 Ga.App. 622 (178 S.E.2d 268).' Our examination of the transcript shows this was done.

Upon ruling that this testimony was admissible, the trial judge, Hon. Clarence Peeler, pointed out that no effort was made by the plaintiff to use the statutory presumptions contained in Code Ann. § 68-1625 subparagraph (c). He stated further his ruling was based on Patterson v. State, 224 Ga. 197, 160 S.E.2d 815 which held that there was no prohibition against the introduction of expert testimony concerning the result of a blood alcohol test administered by a qualified person. The trial judge was correct.

Appellant further contended that the statute codified as Code Ann. § 68-1625 applies only in a penal, as opposed to civil, litigation. This thesis was expressly rejected in Russell v. Pitts, 105 Ga.App. 147, 150, 123 S.E.2d 708.

3. The fifth enumeration of error contends the court should not have permitted introduction of a certified copy of the traffic court conviction upon which a plea of guilty had been entered to the charge of being drunk on the street. Defendant was charged by the investigating officer with three offenses at the time of the incident. These were driving under the influence, failing to remain in a proper lane, and leaving the roadway and striking a fixed object. Defendant's counsel argued below that through plea bargaining the original D.U.I. charge was stricken and in lieu thereof a...