Smith v. Morning News, Inc., 37635
| Decision Date | 05 May 1959 |
| Docket Number | No. 37635,No. 2,37635,2 |
| Citation | 99 Ga.App. 547,109 S.E.2d 639 |
| Parties | Alice SMITH v. MORNING NEWS, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where a medical witness sought to refresh his recollection while on the stand by referring to certain X-ray photographs of the plaintiff's injured arm which were in his possession, it was error to prevent him from so refreshing his memory where it appeared that while he did not personally take the X-rays he was present when they were made, examined them shortly after they were made and determined therefrom the extent and severity of the plaintiff's injury.
(a) It was not ground for so restricting the use of the pictures by the witness that he did not personally make the pictures himself.
(b) Whether or not the testimony given by the witness after so refreshing his memory was from his own recollection or was based on the credibility of someone else and, therefore, in the nature of hearsay was a matter to be ascertained on proper cross-examination of the witness.
2. The court erroneously restricted the right of the plaintiff to cross-examine a witness for the defendant as complained of in the fourth special ground of the motion for a new trial.
3. The remaining special grounds of the motion which are insisted upon either are without merit or are not considered at this time. The general grounds of the motion are not passed on since the evidence on another trial may not be the same.
Mrs. Alice Smith sued The Morning News, Inc., for damages for personal injuries sustained when she allegedly tripped and fell over some loose baling wire left in the public street in front of the defendant's newspaper substation. On the trial of the case and at the conclusion of all the evidence, the trial judge directed a verdict for the defendant. The plaintiff made a motion for a new trial on the usual general grounds which she amended by the additional of seven special grounds. The trial court denied the motion and the exception here is to that judgment. Such facts as are necessary to an understanding of the rulings made will be stated in the opinion.
Alton D. Kitchings, Savannah, for plaintiff in error.
John E. Simpson, Hitch, Miller & Beckmann, Savannah, for defendant in error.
1. One of the medical witnesses for the plaintiff, Dr. Frank Hardeman, Jr., while on the stand and testifying, sought to refer to certain X-rays of the plaintiff's arm (the injured member for which she sued) in order to refresh his recollection as to the nature and extent of her injury. Counsel for the defendant objected to the doctor's referring to and testifying from the X-rays on the ground that he was not the one who took the pictures and that he did not treat the plaintiff for the particular break and, therefore, was not competent to testify from the X-rays. The trial judge sustained this objection and prevented the witness from referring to the X-ray pictures, and this ruling is complained of in the second special ground of the motion for a new trial. This witness had already testified that he was familiar with the condition of the plaintiff's arm, both before and after her injury, but that he took no part in the reduction and treatment of the fracture to her elbow. The judge in the ruling complained of restricted the witness' testimony to the plaintiff's condition immediately after the injury, and this ruling severely restricted the plaintiff in adducing testimony in proof of a material fact upon which her case rested and to this end was probably hurtful to her.
Code, § 38-101. Evidence must relate to the question being tried by the jury and bear upon it either directly or indirectly (Code, § 38-201), and where there is doubt as to the admissibility of evidence that doubt should be resolved in favor of its admissibility and its weight and effect left for the determination of the jury (Heard v. State, 79 Ga.App. 601(2), 54 S.E.2d 495), and where the admissibility of evidence is doubtful the burden is on the objecting party to show wherein it is inadmissible. Carter v. Marble Products, Inc., 179 Ga. 122, 128, 175 S.E. 480. While the rules stated are directly applicable to the admission and exclusion of evidence, and while the question before us relates to a restriction placed upon a witness in refreshing his memory while on the witness stand, the principles enunciated are none the less applicable to this question, and where applied to the objection made by counsel for the defendant to testimony of the doctor and to his refreshing his recollection by referring to the X-ray pictures, the rules of law demonstrate that no real valid objection to such testimony was interposed.
'A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally shall speak from his recollection thus refreshed, or shall be willing to swear positively from the paper.' Code, § 38-1707. If the writing, instrument, document, or other thing from which the witness refreshes his recollection was made in his presence or at his direction and if he knows that it contains true and correct information and is...
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