Platt v. National General Ins. Co.

• Decision Date: 08 September 1992
• Docket Number: No. A92A0765,A92A0765
• Citation: 423 S.E.2d 387,205 Ga.App. 705
• Parties: PLATT v. NATIONAL GENERAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 387

423 S.E.2d 387

205 Ga.App. 705

PLATT v. NATIONAL GENERAL INSURANCE COMPANY.

No. A92A0765.

Court of Appeals of Georgia.

Sept. 8, 1992.

Reconsideration Denied Oct. 6, 1992.

Certiorari Denied Nov. 13, 1992.

J. Douglas Sexton, Norcross, for appellant.

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Savell & Williams, Richard G. Farnsworth, Delores A. Young, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Following denial of her motion for new trial, appellant Vanessa C. Platt has appealed the judgment entered in superior court, pursuant to jury verdict, in behalf of appellee/defendant National General Insurance Company.

Appellant was injured after a car in which she was a passenger struck a tree. She filed suit seeking certain PIP benefits from her father's insurance policy. In addition to asserting an affirmative defense to appellant's suit, appellee filed a counterclaim for declaratory judgment contesting the issue of appellant's residency and entitlement to uninsured motorist benefits under the policy. Appellant also sought declaratory judgment as to whether she was a resident relative entitled to uninsured motorist benefits. The PIP question was resolved and the remaining issues were tried before a jury. Appellant claimed she was a resident of her father's household at the time of the incident and therefore was covered by the policy. Appellee disputed that appellant was a resident of her father's household, and further asserted that, assuming she was such a member, nevertheless the policy was void due to fraud and misrepresentation by appellant's father in failing to disclose on his insurance application that appellant was a member of his household. The jury was instructed to render a verdict upon written interrogatories. A verdict was returned that appellant was not a resident of her father's household at the time of the accident, and that the policy was not procured by fraud. Held:

1. Appellant asserts the trial court erred in admitting into evidence and allowing to be taken out with the jury during deliberation a statement of a witness to the accident. The major issue surrounding this witness' testimony is whether appellant told him, at the time of the accident, that she was residing with her mother in Alpharetta or with her father in Snellville, Georgia. The trial court admitted the witness' pretrial statement as an exception to the hearsay rule and allowed it to go to the jury on the basis that, after a proper foundation was established, it was offered under the legal theory of past recollection recorded. See generally Green, Ga.Law of Evidence (3rd ed.), Witnesses, § 130; Agnor, Ga.Evidence (2d ed.), §§ 4-10; 11-38.

The witness apparently had given his oral statement to an insurance investigator, which was recorded and promptly transcribed. Four days later, the transcript of the statement was presented to the witness for authentication. The last page of the transcript contains the following self-verifying statements in question and answer form: "Q. All right, is everything you have said been true and accurate to the best of your ability? A. To the best of my knowledge, that's correct. Q. Have you understood all of my questions? A. Yes. Q. You understood this conversation was recorded? A. Right." The transcript was signed by the witness, dated, and witnessed by the investigator immediately following this conclusory statement: "I have read completely these sixteen pages and agree that it is my statement."

As the transcript of the witness' statement was neither offered nor admitted in evidence as a business record, for purposes of impeachment, or as part of the res gestae pertaining to the accident, we are not required to adjudicate these issues on appeal. Further, although the transcript contains certain irrelevant information, as no motion was made to excise this information from the transcript neither is this issue preserved for appellate adjudication.

(a) The record reflects appellee apparently allowed the witness to examine his statement transcript prior to trial and, by that procedure, attempted to refresh the witness' recollection of appellant's residency statements so that the witness could testify thereto. Such a form of refreshment or revival of present recollection is acceptable under OCGA § 24-9-69. However, this procedure failed to refresh adequately the witness' recollection. Thus, after testifying on direct examination that he was "sure" he had asked appellant, at the scene of the accident, where she lived and he "believe[d] she said Alpharetta," the witness clarified these statements by testifying during cross-examination that he did not now remember appellant telling him she lived in Alpharetta when he pulled her out of the car. Thereafter, appellee commenced to lay a foundation for the admission of the witness' statement as past recollection recorded. During the course of this procedure, the witness was questioned concerning and attempted to explain the current extent of his recollection regarding the matter as follows: "I'm sure that I asked her where she lived when we were there. And as far as an answer, I can't tell you what she said any time during the whole time that we were out there." On further redirect examination, the witness testified his recollection of the events the night of the incident would have been clearer and fresher in March 1990 (when he gave and later initialed his transcribed statement) than they are today (June 1991). He also was asked whether it was his testimony at trial that appellant had told him she was from Alpharetta, and his response was "I wish I knew." He immediately added that "I'm sure I told him [the insurance investigator] that she told me she lived in Alpharetta. But this long a time, I actually cannot recall whether she told me that or not." (Emphasis supplied.) The combined effect of the above testimony was not only to confirm the witness' lack of in-court recall but to constitute the witness' in-court verification of his knowledge of the correctness of the memorandum as to the relevant information therein recorded, that is, he adequately testified to his willingness "to swear positively from the paper," within the meaning of OCGA § 24-9-69. See Clackum v. State, 55 Ga.App. 44, 49(7), 189 S.E. 397; Green, supra at § 130. " 'A witness can not, without finally testifying from his recollection of the facts, swear from a written memorandum without showing that he made the memorandum or at some time knew it to be correct.' " Proctor & Gamble Co. v. Blakely Oil, etc., Co., 128 Ga. 606, 617(2), 57 S.E. 879. A witness may have knowledge of the correctness of the memorandum "from having made the memorandum, or from having examined it when he had a distinct recollection of the facts to which it referred and at that time found it to be correct." Green, supra at 257; compare Smith v. City of Atlanta, 22 Ga.App. 511, 512(4), 96 S.E. 334. "If the witness made the memorandum himself, his knowledge of its correctness is sufficiently shown by his testimony that he remembers making a correct record of the facts and recognizes as such record the memorandum produced." Green, supra at 257-258. But, "[i]n order for a memorandum to be used as a record of past recollection, the testimony must show that the witness, when his recollection of the facts was fresh, made or checked the memorandum." Green, supra at 258. Under the attendant circumstances, the signed and initialed, self-verifying transcript of the witness' recorded oral testimony was at least the effective equivalent of a memorandum personally prepared by a witness for purposes of establishing past recollection recorded. Thus when the witness testified he was sure he told the investigator the appellant lived in Alpharetta, in essence he was vouching that the transcript of his personally made oral statement correctly recorded what he had stated regarding the matter at issue. Further, as testified to by the witness, his recollection of the events were both clearer and fresher at the time the statement was given and transcribed, and the transcript on its face reveals, as testified to by the witness, that it had been completely read, signed, each page initialed, and its correctness agreed to by the witness on March 20, 1990, only 18 days after the incident. Accordingly, although it would be preferable to ask the witness specifically at trial whether he had told the truth as he then perceived it when he gave his oral statement and whether the transcript constituted an accurate recording in toto of what he had personally stated, the trial court nevertheless could find an adequate foundation had been established to qualify the transcribed statement as past recollection recorded pursuant to OCGA § 24-9-69.

(b) Although the documents used to refresh or revive a witness' present recollection generally cannot be admitted in evidence (Nationwide, etc., Ins. Co. v. Rhee, 160 Ga.App. 468, 472(10), 287 S.E.2d 257; compare Woodward v. City Council, etc., 117 Ga.App. 857, 162 S.E.2d 304), when a foundation is established for the use of the documents for purposes of past recollection recorded, both the testimony of the witness as to the relevant facts contained in the document (Cooper v. State, 174 Ga.App. 464, 466(3), 330 S.E.2d 402; Mabry v. Henley, 123 Ga.App. 561, 566(1c), 181 S.E.2d 884; Bridges v. Mutual, etc., Acc. Assoc., 49 Ga.App. 552(2), 176 S.E. 543; Veal v. Wood, 29 Ga.App. 94(1), 113 S.E. 818) and the document itself (Black, etc., v. Thornton, 30 Ga. 361, 378(1); Clackum v. State, supra, 55 Ga.App. at 50(7), 189 S.E. 397; Stansall v. Columbian Nat. Life Ins. Co., 32 Ga.App. 87, 90, 122 S.E. 733 (dictum); Bank of South Carolina v. Brown, Dudley 62, 64 (Ga.Superior Ct.) (dictum); Agnor, supra at § 11-38, p. 353; Southern R. Co. v. Cowan, 52 Ga.App. 360, 368(6), 183 S.E. 331 (card was inadmissible only because a proper foundation for past recollection recorded had not been laid)...