Thomason v. Genuine Parts Co.

Decision Date25 November 1980
Docket NumberNo. 61035,61035
Citation156 Ga.App. 599,275 S.E.2d 159
CourtGeorgia Court of Appeals

Ralph E. Hughes, Atlanta, for appellant.

Clay Porter, Edgar S. Mangiafico, Jr., Atlanta, for appellees.

McMURRAY, Presiding Judge.

This is an action for damages arising from a motor vehicle collision. Upon the trial of the case the defendants attempted to impeach the plaintiff by showing his prior contradictory testimony at an earlier trial of the case.

The first instance of attempted impeachment involved the plaintiff's speed at the time of the collision. When plaintiff's prior testimony was recalled to him he unequivocally admitted his prior inconsistent testimony. The second instance of attempted impeachment involved plaintiff's testimony as to the distance plaintiff's vehicle had skidded after plaintiff realized there was an impending collision and applied his brakes. In this instance there was no audible response by plaintiff to several questions designed to elicit his admission of the prior contradictory testimony.

Defendant offered as documentary evidence the portions of the transcript of the prior trial which were used in the attempts to impeach plaintiff. These exhibits were received into evidence over plaintiff's objection that the transcript pages were taken out of context and the prejudicial effect of the pages outweighed the probative value. Plaintiff also cited Golden Ga. Ltd. v. McManus, 113 Ga. 982, 39 S.E. 476 as holding that a stenographic report of another trial is not documentary evidence and plaintiff contended the copy of certain pages of the transcript should not be allowed in evidence, although counsel for plaintiff waived any issue as to the authenticity of the transcript copies. The trial court, however, allowed the copies of the pages of the transcript of the prior trial in evidence as documents, citing The Atlanta & W.P.R. Co. v. Venable, 67 Ga. 697(1), 700, wherein answers of a decedent to interrogatories were held to be admissible in evidence.

The jury returned a verdict in favor of the defendants. Plaintiff appeals, enumerating as error the admission into evidence of the pages from the transcript of the previous trial containing statements with which defendants attempted to impeach plaintiff by reading same in evidence and "to be sent out with the jury (as documentary evidence) when the jury retired to deliberate as to its verdict." Held :

"When a witness admits unequivocally that he made a prior inconsistent or contradictory statement, he has thereby impeached himself and it is not error to exclude the prior written statement from evidence. Pethel v. Waters, 220 Ga. 543, 553, 140 S.E.2d 252 (1965); Howard v. Howard, 228 Ga. 760, 762, 187 S.E.2d 868 (1972)." Dickey v. State, 240 Ga. 634, 639, 242 S.E.2d 55. Plaintiff here admitted the prior inconsistent statement with regard to his speed near the time of the collision. At this trial he testified he was traveling "approximately 35 (mph)," but admitted he had answered "Yes, sir" at the former trial in reply to a leading question that he was traveling "35 to 40 miles per hour." The portion of the transcript of the prior trial relating to this issue was immaterial and should have been excluded.

A different rule applies, however, where the witness denies having made the prior inconsistent statement. When this occurs the prior inconsistent statement becomes admissible for purposes of impeachment. Dickey v. State, 240 Ga. 634, 639, 242 S.E.2d 55 supra.

In this case plaintiff's failure to respond to questions designed to elicit an admission to the prior inconsistent statement, although not an overt denial of the statement, was not the self-impeaching testimony which would render portions of the transcript of the prior trial immaterial. He testified at this trial as to skidding "thirty to thirty five feet," yet at the previous trial he had testified he "slid maybe 35 or 40 feet at the most."

Here the witness sought to be impeached is a party in the case and his prior testimony can be said to constitute substantive evidence as to the statements contained therein. See Code §§ 38-403 and 38-404; 81 Am.Jur.2d, Witnesses P 599; Jackson v. Riviera Develop. Corp., 130 Ga.App. 146, 147(1), 202 S.E.2d 545. Compare Henry Grady Hotel Corp. v. Grady Motors, 96 Ga.App. 416, 419-420, 100 S.E.2d 125, for the rule where the impeached witness is not a party. See also Code § 38-405. Consequently, his former testimony is admissible in evidence against him as to inconsistency which he has not admitted.

But we are not necessarily concerned with the admissibility of such testimony as recalled to him under Code § 38-1803 and same is read into evidence to show the conflict in his testimony. Here the trial court was concerned with whether the transcript of this...

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20 cases
  • Johnson v. Bryant, s. 71283
    • United States
    • Georgia Court of Appeals
    • March 4, 1986
    ...the fact that appellant had sued another as well as other matters irrelevant to the issues in this case. Thomason v. Genuine Parts Co., 156 Ga.App. 599, 275 S.E.2d 159; and see Stidem v. State, 246 Ga. 637, 639, 272 S.E.2d 338; Johnson v. State, 244 Ga. 295, 297, 260 S.E.2d 23; Royals v. St......
  • Fuller v. US
    • United States
    • D.C. Court of Appeals
    • May 12, 2005
    ...96 Utah 500, 87 P.2d 807, 811 (1939). See Tibbs v. Tibbs, 257 Ga. 370, 359 S.E.2d 674, 675 (1987) (citing Thomason v. Genuine Parts Co., 156 Ga. App. 599, 275 S.E.2d 159, 162 (1980)) ("It is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be ......
  • Hughes v. State, A95A0656
    • United States
    • Georgia Court of Appeals
    • July 10, 1995
    ...omitted.) Johnson v. State, 244 Ga. 295, 296-297, 260 S.E.2d 23 (1979). This court explained this rule in Thomason v. Genuine Parts Co., 156 Ga.App. 599, 601, 275 S.E.2d 159 (1980): "[W]ritten statements such as interrogatories, dying declarations, confessions of guilt, depositions, etc., s......
  • Miller Distributing Co. v. Rollins
    • United States
    • Georgia Court of Appeals
    • September 14, 1982
    ...of certain written evidence and the question of allowing that evidence to go out with the jury. See generally Thomason v. Genuine Parts Co., 156 Ga.App. 599, 275 S.E.2d 159 (1980); Kresge v. Thomas, 160 Ga.App. 219(1), 286 S.E.2d 473 (1981); Goins v. Glisson, 163 Ga.App. 290, 292 S.E.2d 917......
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