Moore v. Atlanta Transit System, Inc., No. 39008

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: EBERHARDT; CARLISLE, P. J., and CUSTER; EBERHARDT; CARLISLE, P. J., and CUSTER
• Citation: 105 Ga.App. 70,123 S.E.2d 693
• Parties: E. W. MOORE, Administrator, etc. v. ATLANTA TRANSIT SYSTEM, INC
• Decision Date: 09 November 1961
• Docket Number: No. 39008,No. 3

Page 693

123 S.E.2d 693 105 Ga.App. 70 E. W. MOORE, Administrator, etc.
v.
ATLANTA TRANSIT SYSTEM, INC. No. 39008. Court of Appeals of Georgia, Division No. 3. Nov. 9, 1961.
Rehearing Denied Dec. 10, 1961.

Page 694

Syllabus by the Court

1. The purpose of the Summary Judgment Act of 1959 (Ga.L.1959, pp. 234-236, Code Ann. §§ 110-1201 to 1209) is to eliminate a jury trial where such a trial would be unnecessary. Therefore, if the only proof offered by a party in support of his allegations would be incompetent, there would be no necessity for a jury trial and a motion for summary judgment should be granted.

2. The declarations of a decedent to whomsoever made are admissible in evidence if there are no other witnesses to the alleged occurrence, it being for the jury, under appropriate instructions, to determine their weight and credibility.

Elsie J. Moore filed suit against the Atlanta Transit System, Inc. in 1958 seeking to recover for personal injuries. In 1960, an amendment was filed setting out the death of Elsie J. Moore and substituting her temporary administrator, Ernest W. Moore, as the plaintiff.

[105 Ga.App. 71] Both sides filed certain interrogatories, which were subsequently answered. In response to plaintiff's interrogatories, the defendant answered that it knew of no one who saw the event complained of or who arrived on the scene 'immediately or shortly thereafter.' The plaintiff's response to similar interrogatores by the defendant was also that he knew of no eyewitnesses or other persons who arrived 'immediately or shortly thereafter.'

The defendant Transit System then moved for summary judgment under the provisions of the act of 1959 (Ga.L.1959, pp. 234-236, Code Ann. §§ 110-1201 to 1209) on the grounds that there were no eyewitnesses to the event; there were no persons who came upon the scene 'immediately or shortly thereafter'; and that the original plaintiff, Elsie J. Moore, was now deceased. The plaintiff offered certain evidence which will be more fully discussed in the opinion. The trial judge excluded the evidence and entered an order granting the defendant's motion for summary judgment. This order is brought here by the plaintiff for review.

J. E. B. Stewart, James O. Goggins, Atlanta, for plaintiff in error.

Hugh M. Dorsey, Jr., July W. Felton, Jr., Charles R. Adams, Jr., Crenshaw, Hansell, Were, Brandon & Dorsey, Atlanta, for defendant in error.

EBERHARDT, Judge.

At the hearing held on the defendant's motion for summary judgment, the plaintiff sought to introduce a letter from one Dr. Weinstein, a physician employed by the defendant to examine plaintiff's decedent, and particularly that part of the letter in which the doctor related the decedent's history of her complaint given to him as follows: 'In July, 1956, I was boarding an Atlanta Transit bus on Moreland Avenue, S. E. The bus driver closed the door of the bus as I was entering. I was struck on the right chest and back. This caused me to fall on steps of bus. It knocked me out temporarily. On the same day of the accident, I saw Dr. Huie, Glenwood Avenue. He x-rayed my ribs and back, and I saw Dr. Huie twice after the accident. He put a

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brace on me. I stayed in bed most of the time for 4 weeks. I could not get up or down without much pain. I did and still have a thumping pain in my back.' The defendant objected to the introduction of the letter as being 'hearsay and irrelevant, immaterial and has [105 Ga.App. 72] no connection with any allegation of negligence set out in the petition, and that it was a self serving declaration.' The trial judge sustained the objection. The plaintiff indicated that all of his evidence as to how the decedent had been injured was of this type, consisting of what the plaintiff's decedent told various doctors and other persons.

The grounds of plaintiff's appeal are twofold. First, he contends that a motion for summary judgment is not the proper method for deciding questions relative to the admissibility of evidence; and second, that the type of evidence adduced by plaintiff was admissible.

1. There is no merit in the plaintiff's first contention. The purpose of the Summary Judgment Act of 1959 was to eliminate the necessity for a jury trial where there is no genuine issue as to any material fact in the case. Scales v. Peevy, 103 Ga.App. 42, 46, 118 S.E.2d 193; Dillard v. Brannan, 217 Ga. 179, 121 S.E.2d 768. The 'genuine issue' test is not met unless the evidence offered is competent and admissible. Dyer v. MacDougall, 201 F.2d 265 (2nd Cir.); 6 Moore, Federal Practice, 2 ed. 1953 § 56.02 , at 2019; 3 Barron & Holtzoff, Federal Practice & Procedure, 1958 rev. § 1235, at 148-149 and § 1237, at 164. Appolonio v. Baxter, 217 F.2d 267 (6th Cir.) is directly in point. There the defendant's motion for summary judgment was held properly granted where plaintiff's case was not provable by competent evidence because of the Tennessee 'Dead Man's Statute.' Resort to Federal cases is appropriate because the act of 1959 is substantially identical with Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. McCallum v. Twiggs County Bank, 172 Ga. 591(1), 158 S.E. 302.

If further support is necessary, we need only look to that portion of the act of 1959 dealing with affidavits (Ga.L.1959, p. 235, Code Ann. § 110-1205) where it is provided that affidavits 'shall set forth such facts as would be admissible in evidence * * *.' Thus it appears that the affidavits and other material presented to support plaintiff's pleadings must present facts which would be admissible in evidence in their own right. To hold otherwise would require a jury trial where one is unnecessary, a requirement that is contrary to the intent of the Summary Judgment Act of 1959.

[105 Ga.App. 73] 2. However, the problem of the admissibility of the evidence in this case still remains. Unless such evidence is admissible, we would be constrained under the first division of this opinion to hold that the defendant's motion for summary judgment was properly granted, for in that event it would appear from plaintiff's admissions that all of his evidence as to the alleged occurrence is of the same character; and from the admissions of both plaintiff and defendant that there is no known witness who saw it. Hence there would be no competent evidence to raise any material issue.

It is clear that the evidence offered here was hearsay within the definition set forth in Code § 38-301 as 'that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons.' The Code recognizes exceptions to the hearsay rule in the remainder of § 38-301, but concludes with the assertion that 'The very nature of the evidence shows its weakness and it is admitted only in specified cases from necessity.'

Before proceeding further, perhaps an inquiry into the history and background of the hearsay rule and its exceptions would be helpful. In the words of Morgan, 'There was a time when all relevant hearsay was admissible, and there never has been a time when Anglo-American courts have rejected all hearsay.' 2 Morgan, Basic Problems of

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Evidence 221 (1954). And Professor Wheaton in 'What is Hearsay?', 40 Lowa L.Rev. 210, citing Holdsworth, Morgan and Wigmore, says that 'It seems clear that in the very early days of the jury trial there was no objection to the use of hearsay, for the jury reached its decision from information that it gained outside the courtroom. During the sixteenth century the jury began to get information from testimony in court and by the early seventeenth century it received most of its information from that source. During the first three-quarters of the seventeenth century hearsay was constantly received as corroborative evidence. It was in the last quarter of that century that the rule against hearsay came into existence. By the middle of the eighteenth century the exclusionary doctrine was definitely settled.' The reason for the rule, as he then points out, is basically the absence of opportunity to cross-examine and a fear that the admission of hearsay would [105 Ga.App. 74] afford too many opportunities for inaccuracy, mistake, fraud, and untrustworthiness. Various theories to support the numerous exceptions to the hearsay rule have been advanced. Professor Wigmore, for instance, relies on the principles of 'a Circumstantial Probability of Trustworthiness, and a Necessity,' as the guides. 5 Wigmore, Evidence § 1420 (3rd Ed. 1940). Morgan states that no theory will explain all of the exceptions, and proposes the dual test as '(a) whether the hearsay is such that the trier can put a reasonably accurate value upon it as evidence of the matter it is offered to prove, and (b) whether direct testimony of the declarant is unavailable, or if available, is likely to be less reliable.' 2 Morgan, Basic Problems of Evidence 222 (1954). The American Law Institute has suggested the following: 'Evidence of a hearsay declaration is admissible if the judge finds that the declarant (a) is unavailable as a witness, or (b) is present and subject to crossexamination.' Model Code of Evidence, American Law Institute, Rule 503 (1942).

The multitudinous exceptions spawned by the hearsay rule have caused vexatious problems for courts operating under common law principles. For example, there are now from ten to twenty exceptions recognized in the various jurisdictions. McCormick, Evidence, § 300, at 626 (1954). We have seen that even the authorities are unable to agree on the exceptions and the theoretical basis for them. Professor Green says that the exceptions are 'best explained by history rather than logic.' Green, Georgia Law of Evidence § 225, at 503 (1957). McCormick agrees with the statement saying that 'The exceptions were struck off in the heat of trial as improvisations intended to be played by ear, but they fail of that purpose because the classes are...