Pender v. Witcher

• Decision Date: 05 December 1989
• Docket Number: No. A89A1091,A89A1091
• Citation: 389 S.E.2d 560,194 Ga.App. 72
• Parties: PENDER v. WITCHER.
• Court: Georgia Court of Appeals

Page 560

389 S.E.2d 560

194 Ga.App. 72

PENDER v. WITCHER.

No. A89A1091.

Court of Appeals of Georgia.

Dec. 5, 1989.

Rehearing Denied Dec. 20, 1989.

Certiorari Granted Jan. 26, 1990.

Davis, Sissel & Williams, Warren P. Davis, Atlanta, for appellant.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, Atlanta, for appellee.

CARLEY, Chief Judge.

Appellant-plaintiff filed this action, seeking to recover for the personal injuries he allegedly sustained as the proximate result of appellee-defendant's negligence. The case was tried before a jury and verdict in favor of appellant was returned. Appellant's motion for new trial was denied and he appeals.

1. Appellant enumerates as error the denial of his motion for new trial on the ground that the damages awarded by the jury were inadequate. A review of the evidence shows that this enumeration of error is without merit. See generally Wright v. Satilla Rural Elec. Co-op., 179 Ga.App. 230, 232(2), 345 S.E.2d 892 (1986).

2. The trial court denied appellant the opportunity to use, for impeachment purposes, appellee's first offender record for possession of cocaine. This ruling is enumerated as error.

The law provides that an adverse witness may be impeached by several different methods. One such method is to disprove the facts to which he has testified at trial. See OCGA § 24-9-82. Another method is to prove that he made prior contradictory statements relevant to his trial testimony and to the case. See OCGA § 24-9-83. It was only these two methods of impeachment which were discussed and applied in Hightower v. General Motors Corp., 255 Ga. 349, 352, 338 S.E.2d 426 (1986): "To insure that in seeking the truth, the jury is not misled by false or deceiving testimony, we hold that a guilty plea as to which a plaintiff in a civil case has been granted first offender treatment is admissible in evidence to disprove and contradict such party's testimony given in a civil case." However, neither of these two methods is relevant to the impeachment issue presented in the instant case. Accordingly, the Supreme Court's holding in Hightower has no bearing whatsoever on this appeal.

The relevant inquiry in the instant civil case is whether the adverse witness' first offender record is admissible, for impeachment purposes, as evidence of a conviction of a felony or a crime of moral turpitude. Proof that an adverse witness has been convicted of a felony or a crime of moral turpitude is yet another method of impeachment which, entirely unlike the two methods discussed by the Supreme Court in Hightower, is in no way dependent upon a consideration of his trial testimony. "In Georgia, a witness in a civil case may always be impeached by proof of a conviction for a felony or other crime involving moral turpitude. [Cit.]" Giles v. Jones, 169 Ga.App. 882, 315 S.E.2d 440 (1984). Regardless of the specifics of an adverse witness' trial testimony, he is nevertheless subject to impeachment simply because his conviction of a felony or a crime of moral turpitude reflects upon his general lack of credibility. "The fact that a witness has been convicted of a crime involving moral turpitude is admissible for the purpose of discrediting his evidence. [Cit.].... Evidence which discredits a witness on the ground of infamy tends to impeach him." Ford v. State, 92 Ga. 459, 17 S.E. 667 (1893).

A majority of this court has previously held that it is permissible to impeach an adverse witness in a civil case by proving his first offender record for commission of a felony or a crime of moral turpitude. See Hightower v. Gen. Motors Corp., 175 Ga.App. 112, 113(1), 332 S.E.2d 336 (1985), aff'd on other grounds 255 Ga. 349, 338 S.E.2d 426, supra. See also Salomon v. Earp, 190 Ga.App. 405, 407, 379 S.E.2d 217 (1989); Hardman v. Hardman, 185 Ga.App. 519, 520(4), 364 S.E.2d 645 (1988). Possession of cocaine is a felony. Accordingly, unless and until this court's decision in Hightower and the cases which follow that decision are overruled, they must be followed in the instant case and the judgment herein reversed for the erroneous failure of the trial court to allow appellant to impeach the adverse witness by proof of his first offender record for the felony of possession of cocaine.

Whidby v. Columbine Carrier, 182 Ga.App. 638, 356 S.E.2d 709 (1987) is not viable authority for the proposition that no reversible error occurred in this case. In Whidby, this court, relying upon the Supreme Court's decision in Hightower, held: "The defendant's [first offender] criminal record did not tend to 'disprove and contradict [the defendant's] testimony' in this civil case as to a specific material fact testified to by defendant. [Cits.] It tended at best only to impeach the character and credibility of the defendant generally, in this civil suit instigated by another; the fact that defendant had committed theft in the past had no logical bearing on the specific issue of negligence in driving the truck." (Emphasis in original.) Whidby v. Columbine Carrier, supra, 182 Ga.App. at 640, 356 S.E.2d 709(3). It is clear, however, that the Whidby decision is premised upon an erroneous construction of the Supreme Court's decision in Hightower, supra. As previously noted, the Supreme Court's decision in that case related solely to the issue of impeachment pursuant to OCGA §§ 24-9-82 and 24-9-83, and not to the issue of impeachment by proof of conviction of a felony or a crime of moral turpitude. With specific regard to the issue of impeachment by proof of conviction of a felony or crime of moral turpitude, it is the decision of this court in Hightower that is controlling. Thus, regardless of the irrelevancy of an adverse witness' prior first offender record to his trial testimony or to any factual issue in a civil case, that record is admissible as impeaching evidence if it shows his commission of a felony or a crime of moral turpitude. Such evidence is admissible to impeach the witness for the very reason that it does, in fact, reflect upon his general lack of credibility. See generally Ford v. State, supra. Accordingly, the witness in Whidby was subject to impeachment by virtue of his first offender theft record and this court erred insofar as it held that he was not. See Hightower v. Gen. Motors Corp., supra, at 175 Ga.App. 113(1), 332 S.E.2d 426. It follows that Whidby v. Columbine Carrier, supra, is clearly not authority for affirming the judgment in this case. The decision in Whidby is erroneous and is hereby overruled.

As previously noted, the judgment in this case can be affirmed only if the whole court decision in Hightower v. Gen. Motors Corp., 175 Ga.App. 112, 332 S.E.2d 426, supra, and the decisions which follow it are overruled. A majority of this court, as presently constituted, adheres to the holdings in those decisions. Accordingly, the judgment in this case must be reversed for the erroneous failure of the trial court to allow appellant to use appellee's possession of cocaine first offender record for impeachment purposes.

3. An enumeration of error predicated upon the argument of appellee's counsel and upon a jury instruction given by the trial court presents nothing for review. The record shows that appellant made no objection to either the contested argument or the challenged instruction.

4. Appellant's contention that he was erroneously denied the opportunity to testify as to his diminished capacity to work and labor is refuted by the record which contains his testimony in that regard.

Judgment reversed.

DEEN, McMURRAY and BANKE, P.JJ., and BIRDSONG and SOGNIER, JJ., concur.

POPE, BENHAM and BEASLEY, JJ., concur specially.

BENHAM, Judge, concurring specially.

I concur fully with the majority and write only with respect to Division 2 of the opinion. As the majority points out, the judgment in this case can only be affirmed if the decision in Hightower v. Gen. Motors, 175 Ga.App. 112(1), 332 S.E.2d 336 (1985) is overruled. I dissented in Hightower because I believed then, as...