Meeks v. Lunsford, No. 39380

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: FRANKUM; NICHOLS, P. J., and JORDAN
• Citation: 126 S.E.2d 531,106 Ga.App. 154
• Parties: Casey MEEKS v. R. G. LUNSFORD
• Decision Date: 30 May 1962
• Docket Number: No. 39380,No. 2

Page 531

126 S.E.2d 531 106 Ga.App. 154 Casey MEEKS
v.
R. G. LUNSFORD. No. 39380. Court of Appeals of Georgia, Division No. 2. May 30, 1962.
Rehearing Denied June 14, 1962.

Page 532

Syllabus by the Court.

1. Statements of opinions contained in hospital records made in the regular course of business are not admissible in evidence.

2. A litigant, who knows that a municipal ordinance is directely involved and forms a basis of the litigation, cannot be permitted to wait until after the trial has ended to bring in question its constitutionality, which he must necessarily have known would govern the court in its instructions to the jury. The rule would be different if the litigant could not know or could not reasonably anticipate that the substance of the ordinance would be given in charge to the jury.

3. Reversible error does not result from the admission of hearsay testimony when it appears that testimony of similar import was admitted without objection.

4. 'The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him.' Code § 38-1705.

[106 Ga.App. 155] Raymond G. Lunsford (hereinafter referred to as the plaintiff) brought an action against Casey Meeks (hereinafter referred to as the defendant) for damages resulting from personal injuries he allegedly sustained in a collision of a motor vehicle driven by him with a motor vehicle driven by the defendant.

The defendant answered plaintiff's petition denying all allegations of negligence alleged against him. He also set forth a cross-action against the plaintiff seeking to recover damages because of injuries to his person and property damages to his automobile that he allegedly sustained in the collision.

The collision in question occurred in the intersection of 15th Street and 1st Avenue in the City of Columbus, Ga. The defendant was driving his vehicle in an easterly direction on 15th Street. The plaintiff was driving his vehicle in a westerly direction on the same street, and while he was making a left turn in the intersection of the two streets, intending to proceed north on 1st Avenue, the collision occurred.

Page 533

On the day of the trial, the plaintiff amended his petition and set out certain municipal ordinances of the City of Columbus purporting to regulate vehicular traffic in the city, and alleged that, at the time of the collision, the defendant was driving his automobile in violation of the provisions of the ordinances.

The plaintiff alleged that he was afflicted with arthritis before the collision, and that the injuries he sustained to his person in the collision aggravated his arthritic condition.

The evidence was in sharp conflict upon the questions of which party had the right of way in the intersection, the degree of aggravation of the plaintiff's pre-existing arthritic condition, and as to whether the plaintiff was intoxicated at the time of the collision.

The jury returned a verdict in favor of the plaintiff for $12,752.55. The defendant filed a motion for a new trial on the general grounds, which motion was later amended by adding five special grounds. The court overruled the motion for a new trial, as amended, on each and every ground thereof. The defendant appealed assigning this ruling as error.

[106 Ga.App. 156] Roberts & Thornton, Hatcher, Smith, Stubbs & Rothschild, Owen Roberts, Jr., Albert W. Stubbs, Columbus, for plaintiff in error.

Kelly, Champion & Henson, Columbus, for defendant in error.

FRANKUM, Judge.

1. In the first special ground of his motion for a new trial, movant excepts to the refusal of the court to admit a document in evidence and assigns such ruling as error. The document is an emergency room record concerning the admission of the plaintiff for treatment at the medical center in Columbus after he was involved in the collision. The document was made by filling out a printed form. A line on the document sought to be admitted is as follows: 'Diagnosis [printed] Laceration rt eyelid, Mutiple contusions & abrasions, Intoxication [handwritten].'

Movant insists that under the authority of the business interest statute (Code Ann. § 38-711), he should have been allowed to place the document in evidence for consideration by the jury as to whether the plaintiff was intoxicated at the time of the collision. The plaintiff objected to the admission of the document in evidence on the grounds that it was hearsay and did not come within any of the exceptions to the hearsay rule; that it contained matters of the opinion and conclusions of the writer which were not admissible; and that the writer was not present for cross-examination.

Both parties agree that the issue is whether the word 'intoxication' in the document is a statement of fact or is a statement of an opinion or conclusion. It is well settled that diagnosis or opinions are not admissible under the so-called 'shop book' rule. Code Ann. § 38-711. 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; Yarbrough v. Cantex Mfg. Co., 97 Ga.App. 438, 103 S.E.2d 138; Hawkins v. Jackson, 97 Ga.App. 525(3), 103 S.E.2d 634.

It is true that a witness may testify to the ultimate fact as to whether another person was intoxicated at a given time and place (Grier v. State, 72 Ga.App. 633(1), 34 S.E.2d 642; Johnson v. State, 69 Ga.App. 377(1), 25 S.E.2d 584; King v. State, 86 Ga.App. 786, 72 S.E.2d 502), but this may be done only after a proper foundation has been laid to show the basis for such [106 Ga.App. 157] testimony (Andrews v. State, 102 Ga.App. 423, 116 S.E.2d 345; Donley v. State, 72 Ga.App. 429, 33 S.E.2d 925; Grier v. State, 72 Ga.App. 633(2), 34 S.E.2d 642, supra; Joiner v. State, 51 Ga.App....