McDaniel v. Gangarosa

• Decision Date: 19 June 1972
• Docket Number: Nos. 47026 and 47027,3,Nos. 1,2,s. 47026 and 47027,s. 1
• Citation: 191 S.E.2d 578,126 Ga.App. 666
• Parties: Carl J. McDANIEL v. Raymond E. GANGAROSA et al. Mrs. Carl J. McDANIEL v. Raymond E. GANGAROSA et al
• Court: Georgia Court of Appeals

Page 578

191 S.E.2d 578

126 Ga.App. 666

Carl J. McDANIEL v. Raymond E. GANGAROSA et al.

Mrs. Carl J. McDANIEL v. Raymond E. GANGAROSA et al.

Nos. 47026 and 47027.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

June 19, 1972.

Rehearing Denied July 12, 1972.

Syllabus by the Court

In the trial of these actions by a husband and wife for damages for personal injuries to the husband, where the plaintiff husband had testified as to his absence of, or failure to recall, specified injuries, illnesses and symptoms during his military service prior to the present injury, the trial court did not err in admitting in evidence for the limited purpose of impeachment, under the provisions of 28 U.S.C.A. § 1733 without regard to Code Ann. § 38-711, properly authenticated and certified copies of the husband's military medical records, which contained only the plaintiff's dated medical complaints and readily observable symptoms, with doctor's conclusions and diagnoses obliterated therefrom.

In the trial of these actions by a husband and wife for damages for personal injuries to the husband arising out of an automobile collision allegedly caused by the defendants' negligence, the plaintiff husband testified to the following effects: That he never had had any serious childhood diseases or any major illnesses or injuries prior to the collision; that prior thereto, he had not had any trouble with vision, hearing, dizziness, headaches, backaches, nerves, loss of sleep, or rash; and, that he did not remember ever having any trouble or having gone to sick call while in the army. The defendants offered in evidence certain portions of the plaintiff's army medical records, identified by the plaintiff, authenticated by the seal of the National Archives of the United States, and certified by the Chief of the Military Reference Branch of the General Services Administration. The records indicated that, during the plaintiff's service in the army, he was hospitalized on two occasions. Following are comments entered on the record opposite the dates on which plaintiff went to sick call: 'CC Rash since 4 days . . . c.i. Pains rt. side of back . . . See above Still pain R lumbosacral area . . . For the past week pain stomach area burning, mostly after meals, nightly pain . . . dizzy . . . cc he twisted left knee last night Rx heat treatment . . . Patient was in the normal good health until 5 Aug 56, when he awoke with right flank aching pain which persisted . . . t. He has many other symptoms stomach pains, dizzy spells, miscellaneous aches, etc. . . . About 2-3 weeks ago he began to develop dull aching pain in the epigastrum . . . Concussion at age 14 due to blow from back of an axe . . . 8. Fx R clavicle 1953. Hit head in motor cycle accident 4 years ago but never saw doctor . . . 2. Severe frontal and retrobulbar headache 1-2x/yr, disappears overnight . . . P H complains he 'just can't sleep at night. " Five comments were obliterated from the face of the copy of the record. The trial court admitted the records in evidence over appellants' objections that they were not properly authenticated and contained hearsay. The trial of the actions resulted in verdicts and judgments in favor of the plaintiff husband and against the plaintiff wife in her action for loss of services and consortium of her husband. Both appeals from the judgments on the verdicts enumerate as error the admission in evidence of the military medical records.

Ross & Finch, Baxter H. Finch, Charles E. McCranie, Atlanta, for appellants.

Savell, Williams, Cox & Angel, Edward L. Savell, William S. Goodman, Atlanta, for appellees.

STOLZ, Judge.

1. The laws of the United States made in pursuance of the Constitution of the United States, are, along with the U.S. Constitution and U.S. treaties, the supreme law of this State. U.S.Const., Art. VI, Par. 2 (Code § 1-602); Ga.Const., Art. XII, Sect. I, Par. I (Code Ann. § 2-8001). 28 U.S.C. § 1733 provides: '(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept. (b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof.' 44 U.S.C. § 2112(b) provides: 'There shall be an official seal for the National Archives of the United States which shall be judicially noticed. When a copy or reproduction, furnished under this section, is authenticated by the official seal and certified by the Administrator, the copy or reproduction shall be admitted in evidence equally with the original from which it was made.' (Emphasis supplied.)

The subject records were preserved and classified on file at the National Personnel Records Center by the Secretary of the Army, 44 U.S.C. § 3103, and the Administrator of the General Services Administration has legal custody of the records. 41 CFR § 105-60.103. 'A deputy officer may properly certify for the chief officer nominally having custody, and in point of form the name and title of the superior should be used. 5 Wigmore on Evidence, (3rd ed.), 520, § 1633(8).' Pressley v. State, 207 Ga. 274, 277, 61 S.E.2d 113, 115. Hence, the records were in effect properly certified by the Administrator of the General Services Administration by his deputy, the Chief of the Military Reference Branch of the G.S.A., who had actual, as well as legal, custody of the records. This certificate established the elements of authentication-the authority, the incumbency, and the genuineness of the signature of the certifying custodian-as approved for records of the Federal Government. See Mach v. State, 109 Ga.App. 154, 160, 135 S.E.2d 467.

Such properly authenticated and certified records have been held admissible in evidence in this State under the above authority in the criminal cases of Pressley v. State, supra, and Mach v. State, supra. There is no apparent reason for their not being admissible in civil cases as well, as long as their contents are admissible.

2. The colloquy between the trial court and both counsel with respect to the admission of the records makes clear the court's intention to omit hearsay and irrelevant matter and to admit the records for the limited purpose of impeachment of the plaintiff's testimony to the effect that he didn't have any problems in the army and couldn't remember going to sick call. Portions of the records deemed to constitute doctors' conclusions and diagnoses and other than readily observable symptoms, where obliterated from the face of the copies of the records prior to their admission in evidence. However, even if some of the portions admitted contained matter which would be objectionable if the records were tendered as original evidence of the plaintiff's illnesses, injuries, and symptoms, this did not affect their admissibility for the limited purpose of impeachment. In the absence in the record of the charge of the court and any contention that the jury was not properly charged as to the purpose of such evidence, it is assumed that they were so instructed.

The cases urged by the appellees as authority for their contention that the evidence in the present case was inadmissible because of improper authentication and inadmissible matters therein, are distinguishable in that the records there sought to be admitted in evidence were either not properly authenticated or were offered as original evidence, or both. Additionally, some cases rely upon Code Ann. § 38-711 (Ga.L.1952, p. 177) and related statutes for the admission of business records for the purpose of proof of a fact, whereas in the present case, the government records are admissible under the federal statute for impeachment purposes, if for no other purpose. Hence, such cases as Martin v. Baldwin, 215 Ga. 293, 110 S.E.2d 344; Knudsen v. Duffee-Freeman, Inc., 95 Ga.App. 872, 99 S.E.2d 370; Cassano v. Pilgreen's, Inc., 117 Ga.App. 260(2), 160 S.E.2d 439; Douglas v. American Cas. Co., 106 Ga.App. 744, 128 S.E.2d 364; Walburn v. Taunton, 107 Ga.App. 411, 130 S.E.2d 279; Hirsch's v. Adams, 117 Ga.App. 847, 162 S.E.2d 243; and Mabry v. Henley, 123 Ga.App. 561, 181 S.E.2d 884, are not contrary authority.

Furthermore, even if the admissibility of the evidence was doubtful, it was properly admitted, with its weight left to the determination of the jury. Green v. State, 112 Ga.App. 329(4), 145 S.E.2d 80.

If follows that the trial court did not err in admitting the records in evidence and in entering the judgments on the verdicts.

Judgments affirmed.

BELL, C.J., HALL and EBERHARDT, P. JJ., and DEEN, QUILLIAN and CLARK, JJ., concur.

PANNELL and EVANS, JJ., dissent.

EVANS, Judge (dissenting).

McDaniel sued Gangarosa for damages because of personal injuries sustained in an automobile mishap, and during the trial defendant sought to introduce 82 pages of medical history of plaintiff, duly authenticated from the proper department of the Federal Government. Plaintiff objected upon the ground that each of the records contained hearsay and diagnoses of McDaniel's condition by a physician as to whom plaintiff was deprived of the right of cross examination. Stipulation was entered into between counsel for both sides, the court agreeing, that objection was considered as made separately to each document upon said grounds. The court thereafter ruled out some of the matter objected to, but admitted some of it, purportedly being government hospital records as to plaintiff, which contained, among other things, the following: 'Aug. 7, 1956. Pains at side of back, . . . (illegible) . . .' 'Aug. 8, 1956. Pain in R side still persisting.' '1600 Pain worse.' (several other illegible entries) '19 Sept 56. For the past week pain stomach area, burning . . . (illegible) . . . after meals, nightly pain.' '9/4/56. dizzy (doubtful).'...