Williams Bros. Grocery Co. v. Blanton, 39148
| Decision Date | 15 February 1962 |
| Docket Number | No. 39148,No. 3,39148,3 |
| Citation | 124 S.E.2d 479,105 Ga.App. 314 |
| Parties | WILLIAMS BROTHERS GROCERY COMPANY, Incorporated, v. Myrtice BLANTON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where, after the court overruled the objection of defendant's counsel to certain testimony of a witness given on direct examination, the same evidence was elicited from the witness on cross examination, any error in overruling the objection was thereby rendered harmless and the assignment of error thereon does not require a new trial.
2. The testimony of certain physicians as to the plaintiff's complaints of pain was not objectionable as hearsay, where it was given merely in explanation of the course of conduct of the physicians, in one instance reference to another specialist, and in another as the reason for prescribing sedatives.
3. Testimony by a qualified witness as to his interpretation of an x-ray picture is a finding based entirely upon objective symptoms and would not in any event render such testimony objectionable as being based in part on subjective complaints.
4-7. None of the other special assignments of error show harmful or reversible error.
8. The evidence did not demand the verdict for the plaintiff.
Mrs. Myrtice Blanton brought suit in the Superior Court of Tift County against Williams Bros. Grocery Co., Inc. for $25,000 damages for pain and suffering, past, present, and future, allegedly sustained by her on account of personal injuries inflicted when the defendant's truck collided with her automobile at a street intersection in Thomasville, Georgia. She alleged that the defendant was negligent in maintaining the truck with defective brakes and that the driver thereof was negligent in operating the truck in other respects. The defendant filed an answer in which it denied the material allegations of the pitition and contended that the plaintiff could, by the exercise of ordinary care, have avoided the negligence of the defendant's driver, and that the injuries and damages sustained by the plaintiff were caused solely by her own negligence and were not the proximate result of the defendant's alleged negligence. The case was by agreement tried with one by the plaintiff's husband suing for loss of the services of the plaintiff and for hospital and medical expenses. When the cases came on for trial and after the introduction of evidence, the jury returned a separate verdict for the plaintiff in this case in the amount of $6,000 on which verdict judgment was entered. Thereafter, the defendant made a motion for a new trial on the general grounds, which was later amended by the addition of ten special grounds. The trial court denied that motion and the exception here is to that judgment.
Seymour S. Owens, Tifton, for plaintiff in error.
Frank T. Holt, Alexander, Vann & Lilly, Thomasville, for defendant in error.
1. Ground 4 of the motion assigns error because the court permitted counsel for the plaintiff to elicit from the plaintiff's husband, on direct examination, testimony that the plaintiff 'was extremely sore all over her body and she had difficulty in lying down, she couldn't get up by herself because of this soreness' over the objection that the italicized portion of such testimony was 'a conclusion of the witness and inadmissible.' The record in this case shows that counsel for the defendant asked this witness on cross examination whether the plaintiff could get in and out of bed, and the witness replied that she didn't get in and out of bed except with some help. Assuming that the admission of the evidence over the objection made constituted reversible error, such error was rendered immaterial where counsel for the opposing party later elicited from the same witness substantially the same evidence. Southeastern Greyhound Lines, Inc. v. Hancock, 71 Ga.App. 471, 472(2), 31 S.E.2d 59; Lee v. Holman, 184 Ga. 694, 697(5), 193 S.E. 68.
2. Grounds 5, 6, 8, and 9, all concern the admission of testimony of medical witnesses over the objections that such testimony allowed evidence of a hearsay nature, allowed a diagnosis based upon subjective complaints, allowed evidence based upon subjective complaints, or was repetitious of former testimony. The witnesses involved are either Dr. Murphy or Dr. Watt, both of whom were called by the plaintiff, and each of whom appear at one time or another to have examined and prescribed treatment for the plaintiff, and who cannot therefore be considered merely as expert witnesses whose examination was limited to obtaining information to be used solely for the purpose of testifying as an expert in the case. (a) Briefly, ground 5 complains that the witness, being asked, 'What treatment did you prescribe?' replied that since the plaintiff was complaining of some pain out into her arms he felt that she should see a neurosurgeon. In ground 8 another witness, in answer to the same question, replied that he gave her Empirin #3, which contains codeine and tranquilizers, she being uncomfortable for several months and the doctors never being able to get her completely comfortable. In both instances it appears that the witness, if he was in fact guilty of repeating hearsay or purely subjective symptoms, was not making a diagnosis but was explaining his conduct, in the one instance the failure to give treatment, and in the other the prescription of sedatives. The admissibility of evidence to explain conduct is a well recognized exception to the hearsay rule. Foster v. State, 72 Ga.App. 237(2-a), 33 S.E.2d 598. It might be added that there was ample testimony by the plaintiff herself in regard to her pain and headaches, in which connection see McDaniel v. Richards, 64 Ga.App. 612, 619, 13 S.E.2d 710; Gossett v. State 203 Ga. 692(7), 48 S.E.2d 71. These statements contained no opinion by the physician as to the cause, extent, duration, or permanency of the plaintiff's injuries and are not objectionable as a diagnosis based purely upon subjective symptoms.
(b) With respect to ground 6, the answer made by the witness which included a statement that 'when she would move her neck forward and flex it all the way back, she would complain of some pain' would seem to stand on the same footing, but in subsequent testimony on cross examination, this witness testified with respect to that occasion that what he actually meant to say was that when he turned the plaintiff's head to the left she would complain of pain, and it becomes apparent that the witness was testifying to those 'physical manifestations of present pain and suffering' on examination which are always admissible. Atlanta, K. & N. Ry. Co. v. Gardner, 122 Ga. 82(11), 49 S.E. 818.
(c) In special ground 9, there was an objection to a question asking the doctor to state again his findings on the last examination, on the ground that it was repetitious, and to the answer on the ground that it was based partly on subjective complaints. The medical testimony here being of a piecemeal nature, there was no abuse of the court's discretion in allowing the witness to summarize his findings. Nor is it error to allow a medical witness who has treated the patient to testify as to his opinion of the patient's condition, although it be based in part upon the patient's subjective complaints. Seaboard Air-Line Ry. v. Maddox 131 Ga. 799, 63 S.E. 344; Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472, 128 A.L.R. 1013; Kansas City Southern Ry. Co. v. Clinton, 5 Cir., 224 F. 896, 900; Denver & R. G. R. Co. v. Roller, 9 Cir., 100 F. 738, 752; People v. Wilson, 25 Cal.2d 341, 153 P.2d 720; Eckels v. Muttschall, 230 Ill. 462, 82 N.E. 872; Quirk v. Schramm, 333 Ill.App, 293, 77 N.E.2d 417; Stayton v. Conteras, Tex.Civ.App., 150 S.W.2d W.id 342, 347; Northwest States Utilites Co. v. Brouilette, 51 Wyo. 132, 65 P.2d 233, 69 P.2d 623; 51 A.L.R.2d 1051. This is in accord with the general rule that where, when a qualified expert gives his opinion, the opinion is not subject to be ruled out in its entirety simply because it is also shown, by cross examination or otherwise, that it is...
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