Meeks v. Lunsford

• Decision Date: 30 May 1962
• Docket Number: No. 39380,No. 2,39380,2
• Citation: 126 S.E.2d 531,106 Ga.App. 154
• Parties: Casey MEEKS v. R. G. LUNSFORD
• Court: Georgia Court of Appeals

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.

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.

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.

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.

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 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. 463, 180 S.E. 911; Cavender v. State, 46 Ga.App. 782, 169 S.E. 253; Spence v. State, 83 Ga.App 588, 63 S.E.2d 910; Fowler v. State, 82 Ga.App. 197, 60 S.E.2d 473; Code § 38-1708), and in this sense, it is opinion testimony, although not expert opinion testimony. See Green, Ga. Law of Evidence, §§ 110-112. See also Pierce v. State, 53 Ga. 365. Such foundation may be laid by showing that the witness had an opportunity to observe and did observe the person alleged to have been intoxicated. 'The reason usually given [that a witness may testify directly as to whether a person is intoxicated] is that the exact condition of an intoxicated person cannot be depicted to the jury precisely as they appeared to the witness.' Fountain v. Smith, 103 Ga.App. 192, 195, 118 S.E.2d 852, 854. See Donley v. State, 72 Ga.App. 429, 33 S.E.2d 925, supra; Grier v. State, 72 Ga.App. 633, 34 S.E.2d 642, supra.

It is obvious that the law contemplates that a witness should testify to facts showing a proper foundation before his testimony relating to the intoxication of another person is admissible and that he be present and subject to cross-examination. Code Ann. § 38-711 did not abrogate the right of a party to cross-examine a witness called against him (Code § 38-1705). See Knudsen v. Duffee-Freeman, Inc., 95 Ga.App. 872, 99 S.E.2d 370, supra. We have reached the conclusion that this type of statement sought by the movant to be admitted in evidence falls within the classification of opinion testimony to the same extent as expert testimony relating to a diagnosis. As stated in Martin v. Baldwin, 215 Ga. 293, 301, 110 S.E.2d 344, 351, supra: 'A fact can be testified to by any witness, but opinions can be given only by experts or by nonexperts under prescribed conditions. It is unthinkable that an opinion entered in a hospital record or other record would be admissible in evidence when that same opinion could not be given on the witness stand unless and until the witness qualified as an expert.' The prescribed conditions were not met in the instant case, and the court did not err in excluding the document from evidence.

2. In the second special ground of his motion for a new trial, movant contends that the court erred in charging the jury as follows regarding one of the municipal ordinances: 'I charge you that it is a valid city ordinance of the city of Columbus as follows: 'Changing direction or speed--Left turn at intersection, method. A driver of a vehicle turning to the left into an intersecting street shall: (1) Keep close to the center line of the street on which he is proceeding before making a turn; (2) Pass beyond the central point of the intersection of the two streets; and (3) Yield the right of way to oncoming vehicles the path of which he must cross in order to make a left turn.'' The basis of the movant's contention is that the ordinance is in conflict with a State statute on the same subject matter (See Code Ann. § 68-1651), citing Jenkins v. Jones, 209 Ga. 758, 75 S.E.2d 815; Lanford v. Alfriend, 147 Ga. 799(1), 95 S.E. 688; Snipe v. Dixon, 147 Ga. 285, 93 S.E. 399; Mayo v. Williams, 146 Ga. 650, 92 S.E. 59. It is well settled that a municipal ordinance which is in conflict with a State statute is not valid (Mayor, etc., of Savannah v. Hussey, 21 Ga. 80, 68 Am.Dec. 452; Jenkins v. Mayor, etc., of Thomasville, 35 Ga. 145; Strauss v. Mayor, etc., of Waycross, 97 Ga. 475, 25 S.E. 329; Moran v. City of Atlanta, 102 Ga. 840, 30 S.E. 298; Callaway v. Mims, 5 Ga.App. 9, 62 S.E. 654), but this principle of law is founded upon a constitutional provision that: 'Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law.' Art. I, Sec. IV, Par. I, of the Constitution of the State of Georgia (Code § 2-401). And we think this is the clear import of Giles v. Gibson, 208 Ga. 850, 69 S.E.2d 774. While the Court of Appeals has jurisdiction to determine the constitutionality of a...