Reed v. Heffernan
| Decision Date | 01 May 1984 |
| Docket Number | No. 67990,67990 |
| Citation | 318 S.E.2d 700,171 Ga.App. 83 |
| Parties | REED et al. v. HEFFERNAN. |
| Court | Georgia Court of Appeals |
A. Martin Kent, R. Stephen Sims, Savannah, for appellants.
Fredric W. Stearns, Edward T. Brennan, John W. Hendrix, Savannah, for appellee.
Wrongful death action. In November, 1981, Gregory Heffernan was invited by his girlfriend, Susan Reed, to go to her home in Knoxville, Tennessee, for the Thanksgiving holiday. Susan was a student at the University of Georgia. She drove her car from Athens to Knoxville with Heffernan as a passenger. Heffernan drove her car on the return trip from Knoxville to Athens. The return journey was driven in rainy conditions. When arriving at the outskirts of Demorest in north Georgia, and while rounding a curve, the Reed vehicle left the right lane, crossed the middle line and crashed head-on into an oncoming car. Susan Reed suffered fatal injuries to which she succumbed about a week after the accident. Reed's parents brought a wrongful death action against Heffernan alleging various acts of negligence. Heffernan defended on the premise that because of the wet road conditions, the lack of adequate tread on the front tires and the right curve around which he was negotiating, the car hydroplaned through no negligence of his and thus the death resulted wholly from an accident.
The jury received full and correct instructions on injuries resulting from negligent driving as well as a charge on accident. The jury returned a verdict in favor of Heffernan. The trial court made the verdict of the jury its judgment.
The Reeds bring this appeal enumerating seven alleged errors, four dealing with the admission of testimony, one relating to the charge of the court on accident, and two relating to issues involving damages. Held:
1. In enumerations 1, 2, 4 and 7, the Reeds complain the trial court erred in allowing allegedly improper and harmful evidence before the jury.
(a) During the trial of the case, Heffernan was allowed to call a police officer from Demorest and present evidence that the curve at which the accident occurred, known as the "Demorest Curve," was more dangerous than others in the vicinity and that accidents similar to the Reed accident had occurred on that same curve. Appellants objected to the testimony on hearsay grounds because the officer testified from an accident report that he personally did not prepare and of which he was not the custodian. Furthermore, it is asserted that evidence of a different accident was irrelevant and prejudicially harmful to appellant's case.
The police officer testified that the accident report was prepared on a standard form, that such a form was prepared at every accident investigation, and that the form was required to be filled out to reflect the facts and circumstances of the accident as observed by the investigator. The report was then filed in the police office and accessible to all the police personnel. Thus there was no particular "custodian" of the records in that all the officers in the station maintained and used the records. The trial judge overruled the objections raised concluding that the report was prepared in the regular course of business and qualified as a business record. He also concluded that under the peculiar circumstances of the small office in Demorest, the officer in effect qualified as a custodian of the records.
Any individual who is familiar with the method of keeping records and can identify them may lay the foundation required by OCGA § 24-3-14(b). Cotton v. John W. Eshelman & Sons, 137 Ga.App. 360, 362, 223 S.E.2d 757. There can be no real doubt that the records were business records and that the officer laid a proper foundation for the admission of the record. See Pickett v. State, 123 Ga.App. 1(2), 179 S.E.2d 303 in which this court held a police report may be a business entry, as contemplated by OCGA § 24-3-14(b), where a proper foundation is laid. Thereafter, the officer simply laid before the jury the contents of the documents. The fact that he had no personal knowledge of the entries on the document, after an appropriate foundation was laid, does not affect the admissibility of the evidence though it may go to its weight. Smith v. Bank of the South, 141 Ga.App. 114, 232 S.E.2d 629. We reject the argument that the contents of the document were hearsay. Though there might have been a "best evidence" objection, none was made on that ground and will not be considered on appeal. Boggs v. Griffeth Bros. Tire Co., 125 Ga.App. 304(7), 187 S.E.2d 915.
Moreover, we find no error in the admission of the evidence of a separate accident at the same curve. The facts of the subsequent accident show the same curve, a wet day, and a car sliding across the center line. Even though the facts showed that the accident was caused by a car proceeding in the northbound direction rather than in the south, as in the present case, the court held there was substantial similarity. The trial court allowed the evidence for the limited purpose of showing the potential for a hydroplane accident occurring on that curve.
Such evidence is the substantial equivalent of a scientific test designed to show the probability of an incident occurring in the way asserted by an expert. Indeed an expert had testified that on a wet day on that same curve and at an established speed, hydroplaning did in fact occur. Heffernan had presented his explanation that the cause of the accident was unexpected and accidental by hydroplaning. Thus, the evidence was considered by the trial court to relate to the probability or improbability of hydroplaning and was admitted only upon a showing of relevancy and similarity to the questioned accident. The relevancy of other occurrences and thus the admissibility of such evidence lies within the sound discretion of the trial court, and may have probative value if the conditions of the other occurrence are substantially similar and may explain the occurrence under examination by the jury. Georgia Cotton Oil Co. v. Jackson, 112 Ga. 620 (4), 37 S.E. 873; Carlton Co. v. Poss, 124 Ga.App. 154, 155 (3), 183 S.E.2d 231. In the instant case, seven separate accidents were offered as similar and the trial judge ruled out six of the seven. Furthermore, the plaintiff, appellant herein, at the end of the evidence introduced as part of their evidence the accident report which the trial court allowed in as a similar accident. The trial court did not admit the subsequent accident to illustrate negligence or the lack thereof by either party but to show the danger of the curve and the possibility of...
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Brown v. State
...the business records exception to the hearsay rule. Gann v. State, 190 Ga.App. 82, 83(1), 378 S.E.2d 369 (1989); Reed v. Heffernan, 171 Ga.App. 83, 84(1), 318 S.E.2d 700 (1984); Johnson v. State, 168 Ga.App. 271, 272(1), 308 S.E.2d 681 (1983); Pickett v. State, 123 Ga.App. 1, 2(2), 179 S.E.......
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Brown v. State
...hearsay statements, opinion evidence, and conclusions. Gann v. State, 190 Ga.App. 82(1), 378 S.E.2d 369 (1989); Reed v. Heffernan, 171 Ga.App. 83(1), 318 S.E.2d 700 (1984); Johnson v. State, 168 Ga.App. 271(1), 308 S.E.2d 681 (1983); Pickett v. State, 123 Ga.App. 1(2), 179 S.E.2d 303 (1970)......
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