Russell v. Pitts, 39146
| Decision Date | 30 November 1961 |
| Docket Number | No. 3,No. 39146,39146,3 |
| Citation | 105 Ga.App. 147,123 S.E.2d 708 |
| Parties | J. F. RUSSELL v. R. L. PITTS |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Evidence that it is the custom of the emergency room where the blood sample of the plaintiff's wife was taken to steam autoclave and not to sterilize instruments with alcohol; that the witness saw Dr. Williams remove the blood sample with a needle used for this purpose; that he placed it in an envelope identified by him and mailed it to the Crime Laboratory in Atlanta; evidence of another physician that Dr. Williams was known to him to be a conscientious and qualified doctor; and testimony of the toxicologist after qualification that he received through the mail envelope identified by the first witness, made the tests, and arrived at the result stated by him, was sufficient to allow the results of such alcohol blood test to be introduced in evidence.
2. A ground of a motion for a new trial which fails to conform to the requirements of Code Ann. § 6-901 is too indefinite for consideration.
3. The inaccuracy in the charge discussed in this division of the opinion was no more than a slip of the tongue not calculated to confuse the jury and in not reversible error.
4. The last clear chance doctrine is but a phase of proximate cause, and should, if desired to be given in charge, be specially requested.
5. An instruction which clearly leaves for jury determination the question of whether certain conduct on the part of the plaintiff, not a violation of a statute, amounted to negligence, is not erroneous.
J. F. Russell filed an action for damages in the City Court of Columbus against Roland L. Pitts for medical expenses and loss of services of his wife due to injuries sustained by her resulting from the operation of an automobile by the defendant. Following verdict for the defendant plaintiff moved for a new trial on the general grounds and 9 special grounds. The overruling of this motion is assigned as error, the plaintiff abandoning the general grounds of the motion in this court.
Owen Roberts, Jr., Thornton & Roberts, Columbus, for plaintiff in error.
Foley, Chappell, Young & Hollis, Columbus, for defendant in error.
1. The first two special grounds of the motion for a new trial attack evidence introduced for the purpose of showing that a sample of the plaintiff's blood was obtained soon after her entry to the hospital, which when examined showed a concentration of .37% alcohol by weight, an amount sufficient to render her heavily intoxicated. Dr. Whatley, who treated the plaintiff, testified that he was not present when the blood sample was taken; that he is familiar with the emergency room and with the manner in which instruments and hypodermic needles are prepared and sterilized at the medical center and that it is his professional impression all syringes and needles are steam pressure autoclaved, and no alcohol sterilization is used; that he knows Dr. R. Williams, a former resident or interne at the medical center, and that Dr. Williams' competency and conscientiousness are of the highest. Corporal Parr testified that he is employed by the Department of Public Safety and investigated the accident; that he subsequently came to the medical center at Columbus; that he asked Dr. Williams to take a blood sample of the plaintiff; that he was present when the blood sample was taken; that the operation was performed by sticking a needle in the plaintiff's arm, drawing out some blood placing it in a glass tube with rubber stopper and adhesive tape, and that the witness then mailed the blood sample to Atlanta. He identified the envelope in which it was received and verified that it was in the same condition except for the opening slit and identification marks as when he mailed it. H. E. Pyles testified that he is a toxicologist with the Georgia State Crime Laboratory; that he recognized the envelope identified by Parr as the one he received on January 13, 1958; that he slit the envelope and upon removing the tube of blood tested the sample for alcohol and found that it contained a percentage of .37% alcohol by weight.
The objections are (1) to allowing Dr. Whatley to testify to the uniform procedure of sterilization in the medical center and (2) to allowing a toxicologist to testify to the alcohol content of the blood sample for the reasons that he was not present when the sample was taken, no foundation was laid for the introduction of such evidence, and it was not shown that a qualified medical man obtained the blood sample used.
As to the first objection, it is generally permissible to allow a witness to testify from his own knowledge as to the usual custom or course of dealing involving the business routine of the party involved, in this case the medical center. Farmers' Ginnery & Manufacturing Co. v. Thrasher, 144 Ga. 598(3), 87 S.E. 804; Gulf Refining Co. v. Smith, 164 Ga. 811, 812(7), 139 S.E. 716; Burch v. Americus Grocery Co., 125 Ga. 153(3), 53 S.E. 1008; Butler v. State, 142 Ga. 286(6), 82 S.E. 654; Leonard v. Mixon, 96 Ga. 239, 23 S.E. 80. The witness showed sufficient familiarity with the methods of sterilization employed to serve as a basis for the introduction of the testimony.
As to the second objection, the evidence as a whole shows that the blood sample was taken by a qualified doctor and the fact that the witness who examined the sample thereafter was not present at the time it was taken is immaterial. It would appear very rare indeed that the police officer or physician extracting the blood would also...
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