Waldrup v. Baker

• Decision Date: 16 July 1986
• Docket Number: No. 72230,72230
• Citation: 180 Ga.App. 121,348 S.E.2d 566
• Parties: WALDRUP v. BAKER.
• Court: Georgia Court of Appeals

Page 566

348 S.E.2d 566

180 Ga.App. 121

WALDRUP v. BAKER.

No. 72230.

Court of Appeals of Georgia.

July 16, 1986.

Rehearing Denied July 31, 1986.

Certiorari Denied Sept. 2, 1986.

Ralph E. Hughes, Decatur, for appellant.

Frank E. Jenkins III, Ruth Zaleon, Atlanta, for appellee.

BENHAM, Judge.

Appellant Waldrup filed suit against appellee Baker to recover damages Waldrup allegedly suffered when her car collided with an automobile driven by Baker. After the jury returned a verdict in favor of Baker, appellant brought this appeal, citing an evidentiary issue as reversible error.

1. At trial appellant testified she was suffering from pain in her neck, shoulders, and mid-back. She admitted that two to three years prior to the collision she had been treated by a chiropractor for muscle tension and that five years before the collision she had been hospitalized due to headaches. She stated that prior to the collision she had not experienced any problem with her neck, back, or any part of her body other than the muscle tension and headaches mentioned earlier. Over appellant's objection, the trial court admitted two documents, confidential patient histories appellant had completed before beginning treatment by two different chiropractors. In the earlier document, completed twelve days after the collision, appellant sought relief from hip, neck, and shoulder pain, a condition which she stated first appeared in 1979. In the second form, filled out by appellant five and one-half months after the collision, she complained of neck, shoulder, and lower back pain which, she said, had its inception with the collision and which she had not suffered previously.

The first document was admissible to impeach appellant's testimony that she had suffered only muscle tension and headaches prior to the collision. In addition, both that inconsistent form and the later document which connected her maladies with the collision were admissible as prior out-of-court statements of a witness whose veracity was at issue and who was present at trial, under oath and subject to cross-examination. Edwards v. State, 255 Ga. 149(2), 335 S.E.2d 869 (1985); Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985); Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982). See also Cooperwood v. Auld, 175 Ga.App. 694, 334 S.E.2d 22 (1985). Even though a witness admits making the prior inconsistent statement, evidence of that statement is admissible because the jury may now consider the inconsistent statement as substantive evidence. Since impeachment is no longer the sole function of the prior inconsistent statement, its admission into evidence is neither cumulative nor unduly prejudicial. Lockhart v. State, 169 Ga.App. 931(1), 315 S.E.2d 455 (1984). Similarly, prior consistent statements are now admissible as substantive evidence. Edwards v. State, supra; Cuzzort v. State, supra. In this trial where appellant's theory of recovery was dependent upon proving the collision with appellee was the proximate cause of her maladies, appellant's prior statements, both consistent and inconsistent, were substantive evidence and admissible as such.

2. Appellant contends reversible error was committed when the trial court, over appellant's objection, permitted the two documents at issue to go to the jury room while the jury deliberated.

Under the Supreme Court's rulings in Gibbons, supra, and Cuzzort, supra, appellant's prior statements were admissible as substantive evidence. "The proscription on the jury's possession of 'written testimony' does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case. [Cit.]" Munda v. State, 172 Ga.App. 857(2), 324 S.E.2d 799 (1984). See also Vinyard v. State, 177 Ga.App. 188, 338 S.E.2d 766 (1985). Therefore, the trial court did not err in permitting the documents to be taken into the jury room.

Judgment affirmed.

DEEN and BIRDSONG, P.JJ., and CARLEY and SOGNIER, JJ., concur.

BANKE, C.J., McMURRAY, P.J., and POPE and BEASLEY, JJ., dissent.

POPE, Judge, dissenting.

For the reasons set forth in the dissent in Vinyard v. State, 177 Ga.App. 188, 191, 338 S.E.2d 766 (1985), I believe the trial court committed reversible error by allowing the two documents at issue to go to the jury room during deliberation. Therefore, I respectfully dissent.

BEASLEY, Judge, dissenting.

I do not believe the two documents were admissible as evidence themselves, in the circumstances here.

The first document was the "Confidential Patient Case History" sheet which plaintiff had filled out when she first went to chiropractor Dr. Barnett in March 1982, some five months after the collision. Dr. Barnett used it to refresh his recollection while testifying on direct examination about her coming to him. He was asked, "Tell us what history she gave you?" and he related quite precisely what was on the sheet. Then on cross-examination he testified further and accurately as to what information was on the sheet. Thus, the history which plaintiff gave to Dr. Barnett in writing was related to the jury by way of the doctor's testimony; the writing was not inconsistent with it, it just repeated it. Nor did plaintiff ever deny that this was what she gave Dr. Barnett. Consequently, the contents of the document were not at issue; they were recited and admitted by the witnesses, who did not deny the contents, and the jury had the contents by way of oral testimony. The document itself would not then be admissible, for it served only the purpose of allowing the jury to give heightened regard to this testimony as compared to that testimony which the jury did not have in writing. Its admission was reversible error. As said in Thomason v. Genuine Parts Co., 156 Ga.App. 599, 601, 275 S.E.2d 159 (1980), "the jury heard the testimony from the witness stand but same should not be unduly emphasized by giving the jury an opportunity to read them one or more times after hearing...