Paulk v. Thomas, 42656

• Decision Date: 17 March 1967
• Docket Number: No. 1,No. 42656,42656,1
• Citation: 154 S.E.2d 872,115 Ga.App. 436
• Parties: Dutch PAULK v. J. H. THOMAS
• Court: Georgia Court of Appeals

Page 872

154 S.E.2d 872

115 Ga.App. 436

Dutch PAULK v. J. H. THOMAS.

No. 42656.

Court of Appeals of Georgia, Division No. 1.

March 17, 1967.

Syllabus by the Court

1. Error, if any, in the admission or exclusion of testimony is harmless where it appears that other testimony of similar import was admitted without objection.

2. The sufficiency of preliminary proof in identifying photographs and demonstrating their likeness to what they purport to portray as a prerequisite to admission in evidence is a matter in the discretion of the trial judge, and unless abuse of the discretion appears no error is shown.

3. (a) As a general rule testimony of a physician including the history of how an injury may have occurred, or statements of past pain and suffering, or complaints of pain which were not made under such circumstances as to be equivalent to spontaneous and involuntary outcries, groans or convulsive movements resulting from manipulations of the patient's body by the physician, is not admissible.

(b) Objections on substantial grounds relating to the incompetency of evidence obtained by deposition may be urged when the deposition is offered at the trial, whether or not the objections were made and noted before the commissioner before whom the deposition was taken.

(c) Where evidence goes to the extent or duration of the plaintiff's injuries, or to the extent of his pain and suffering therefrom and the treatment required, as distinguished from the matter of whether he was in fact injured, it relates to the amount of recovery to which he may be entitled rather than to his right to recover; and where there has been a verdict for the defendant, exclusion of the evidence is not ground for reversal.

(d) Where in his answer a witness departs from the facts stated in a hypothetical question propounded to him, the answer is unresponsive and should be excluded.

4. When objection is interposed to the answering of a question by a witness and the objection is sustained, it is incumbent upon the party offering the evidence to make a showing as to what he expected the witness to answer, and how the expected answer would be material, relevant and beneficial to him. If that is not done, no question as to the propriety of the ruling can be raised on appeal.

Dutch Paulk, alleging himself to have been a guest passenger in an automobile driven by his son-in-law, Ralph Tillman, brought suit against J. H. Thomas seeking damages for injuries alleged to have been sustained when a pickup truck he was operating collided with the Tillman vehicle. A verdict was returned for the defendant, and plaintiff appeals from the overruling of his amended motion for new trial.

G. Gerald Kunes, Tifton, for appellant.

Maxwell A. Hines, Tifton, for appellee.

EBERHARDT, Judge.

1. While plaintiff was testifying on direct examination he was asked whether he was engaged in making a crop prior to the accident in July, 1962. He answered, 'Yes, sir, and made one up until 1962, until I got hurt, then I got behind with what I had to do because I wasn't able to do nothing.' The answer was objected to and excluded upon the ground that it was a conclusion. This ruling is urged as error. Since later in his testimony he was permitted to testify, without objection, that after the accident he was physically unable to continue to labor on his crop, it is unnecessary for us to decide whether the ruling was error. Savannah Elec. Co. v. Crawford, 130 Ga. 421(4), 60 S.E. 1056; Waters v. Wells, 155 Ga. 439(4), 117 S.E. 322; Cochran v. State, 212 Ga. 245(3e), 91 S.E.2d 601.

2. Plaintiff tendered in evidence three photographs of the location on a graded road where the accident occurred. The photographs were made nearly three years after the date of the accident. In identifying the photographs plaintiff admitted that the appearance of the road as portrayed was not the same as when the accident occurred, in that there had been ruts of considerable depth, made by the wheels of vehicles, when the accident occurred but which no longer existed, the road appearing in the photographs to have a smooth surface. The photographs were objected to and excluded on the ground that they did not depict the road as it appeared at the time of the collision.

We find no error in this ruling. 'The question of the sufficiency of the preliminary proofs to identify photographs, or to show that it is a fair or accurate representation of the objects which it purports to portray, is a question committed to the discretion of the trial judge.' Johnson v. State, 158 Ga. 192, 198(2), 123 S.E. 120, 122. Accord: Rosenthal v. O'Neal, 108 Ga.App. 54(2), 132 S.E.2d 150; Owensby v. Jones, 109 Ga.App. 398(8), 136 S.E.2d 451. Since a question was raised by the testimony as to whether the defendant had turned, or attempted to turn the wheels of his vehicle from ruts in the road prior to the collision, the admitted difference in the appearance of the road in the photographs was material, and there was no abuse of discretion in excluding them.

3. (a) Before suit was filed plaintiff went to Dr. Exum Walker for an examination, and after the examination procured Dr. Walker's deposition for use at the trial. The deposition was taken under stipulation that all objections, save as to leading questions, were reserved until the deposition should be offered at the trial.

Dr. Walker testified as to some of the history of the accident and injuries as given to him by the plaintiff, and expressed an opinion concerning the nature and permanence of the injuries which, on cross examination, he admitted to be in part based upon the history given him by Mr. Paulk. Upon objection that the recitals of history were hearsay and that the opinions were based upon hearsay, portions of the doctor's deposition were excluded.

There was no error in this ruling. In Atlanta, Knoxville & Northern Ry. Co. v. Gardner, 122 Ga. 82, 95(11), 49 S.E. 818, Justice Fish reviewed this problem in the light of prior decisions of our Supreme Court and decisions of the courts from other jurisdictions, and laid down the rule that complaints made to a physician of pains in designated portions of the patient's body are not admissible in his favor, unless made under such circumstances as to be equivalent to spontaneous and involuntary exclamations or outcries, groans, convulsive movements, and other physical manifestations of present pain and suffering. That rule has not been overruled or altered; it has been followed, and we are bound by it. Goodwyn v. Central of Ga. Ry. Co., 2 Ga.App. 470(1), 58 S.E. 688; Bolton v. Columbia Cas. Co., 34 Ga.App. 658, 130 S.E. 535; Alabama Great Southern R. Co. v. McBryar, 65 Ga.App. 153, 158(7), 15 S.E.2d 563; Wade v. Drinkard, 76 Ga.App. 159(4), 45 S.E.2d 231. It applies to opinions which are based upon the patient's hearsay history or his subjective complaints. Atlantic Coast Line R. Co. v. Clinard, 93 Ga.App. 64, 66(6), 90 S.E.2d 923; Atlantic Coast Line R. Co. v. Marshall, 93 Ga.App. 134, 137(7), 91 S.E.2d 96. The doctor may, however, testify from personal observations of his patient that he was suffering pain. Eason v. Crews, 88 Ga.App. 602, 613(2), 77 S.E.2d 245.

Appellant urges that it is necessary for the doctor to obtain from his patient a history of his injuries and his complaints, subjective though they may be, in order to formulate an opinion and to prescribe treatment, and that since this is necessary this rule should be changed to admit testimony containing the patient's historical statements and complaints, particularly when these are in part, at least, the basis for the doctor's opinion concerning the nature and extent of the injuries suffered. It is suggested that the rule of necessity be used in holding the testimony admissible.

The rule of necessity, exemplified in Moore v. Atlanta Transit System, Inc., 105 Ga.App. 70, 123 S.E.2d 693, has no application here since the plaintiff was available and could testify himself as to how he may have been injured and as to his pain and suffering. Justice Fish pointed out in Atlanta, etc., Ry. Co. v. Gardner, 122 Ga. 82, 97, 49 S.E. 818, supra, that the necessity for admitting testimony of this kind no longer existed after parties were made competent to testify as witnesses. Moore v. Atlanta Transit System, Inc., supra, dealt with a situation in which the party was no longer available to testify, and applied the rule of necessity as an applicable exception.

Dealing with a contention substantially the same as that urged by appellant, Judge Bell, afterwards Chief Justice Bell, asserted in Bolton v. Columbia Casualty Co., 34 Ga.App. 658, 661, 130 S.E. 535, 536: 'Counsel for plaintiff in error says that: 'Just as every wrong has its remedy in the law, every fact should be capable of some legal proof.' But in the juridical sense the court cannot know that the fact exists until there is proof of it. The statement of counsel would illogically assume its existence in order to let in the proof, whereas the proof should come first. Otherwise there is no fact to deal with. Hearsay is without probative value.'

(b) The contention that the objections to the testimony of Dr. Walker were not timely made is without merit. If the plaintiff were not estopped from urging this by virtue of the stipulation under which the deposition was taken, he would be met with the rulings in Erk v. Simpson, ...