Wilson v. Childers, 69155

• Decision Date: 29 January 1985
• Docket Number: No. 69155,69155
• Citation: 329 S.E.2d 503,174 Ga.App. 179
• Parties: WILSON v. CHILDERS et al.
• Court: Georgia Court of Appeals

Page 503

329 S.E.2d 503

174 Ga.App. 179

WILSON v. CHILDERS et al.

No. 69155.

Court of Appeals of Georgia.

Jan. 29, 1985.

Rehearing Denied March 27, 1985.

Certiorari Denied May 1, 1985.

Lester Z. Dozier, Jr., Macon, for appellant.

Thomas C. James III, William E. Mull, Macon, for appellees.

BENHAM, Judge.

Plaintiff-appellant was a passenger on a motorcycle which collided with an automobile driven by defendant-appellee Childers. A jury trial resulted in a verdict in favor of Childers, and judgment was accordingly entered. This appeal followed.

1. From the evidence adduced at trial the jury was authorized to find that defendant Childers had proceeded into an intersection after stopping, looking both ways, and seeing no traffic. However, the car stalled in the middle of the intersection. While Childers attempted to restart the car, he watched another vehicle approach his stalled car and safely navigate the intersection. Two to three minutes after he had begun his efforts to restart his auto, the motorcycle carrying appellant entered the intersection and collided with the stationary car. The motorcycle operator testified that he and appellant had been drinking beer and playing pool prior to the accident; that he saw appellee's car pull up to the stop sign at the intersection, stop, proceed into the intersection, and stall; and that he unsuccessfully attempted to avoid the collision by laying the motorcycle down. The motorcyclist also agreed that one can see 300 to 400 yards down the road from the intersection where the accident occurred. When construed with every inference and presumption in favor of upholding the verdict, the above-summarized evidence was sufficient to support the jury verdict in favor of defendant Childers. Felton v. Mercer, 149 Ga.App. 358(1), 254 S.E.2d 398 (1979).

2. After appellant filed suit against appellee Childers, Childers filed a third-party complaint in which he named as third-party defendant Stanley Grabanski, the driver of the motorcycle. During the presentation of his case, the third-party plaintiff called the third-party defendant to the stand for purposes of cross-examination. Appellant's objection to the procedure was overruled, and he now enumerates that ruling as error.

OCGA § 24-9-81 permits a party to make an opposite party a witness for cross-examination purposes. When appellee filed the third-party complaint against Grabanski, appellee and Grabanski became opposing parties, each entitled to take advantage of the privileges accorded him under OCGA § 24-9-81. See Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga.App. 679(2), 305 S.E.2d 361 (1983). Cf. Latex Filler etc., Co. v. Chapman, 139 Ga.App. 382, 228 S.E.2d 312 (1976). There was no error in permitting appellee to call the third-party defendant for purposes of cross-examination.

3. An orthopedist who served as a consulting physician during appellant's hospitalization testified by deposition at trial. He was given a certified copy of the hospital laboratory report containing the results of certain tests run on appellant and was asked if appellant's blood alcohol level was discernible from the report. The physician responded that the hospital report reflected a "markedly elevated" blood alcohol level of 200 milligrams percent. The hospital report itself was subsequently tendered and admitted into evidence. Appellant argues on appeal that the doctor's testimony concerning the lab report was irrelevant hearsay and not based on facts in evidence, and that the lab report itself was inadmissible hearsay.

Appellant's contention that the physician's testimony was an opinion based upon facts not in evidence was waived because that objection was not made at the taking of the deposition or at trial. Failure to raise the objection in the trial court provides no basis for consideration by this court. Hopkins v. City of Philadelphia, 155 Ga.App. 534(3), 271 S.E.2d 672 (1980).

The physician's testimony concerning the laboratory report was not hearsay. "Testimony which depends on a laboratory report is inadmissible unless the report is admissible as a business record or the facts relied on therein are otherwise proved. [Cit.]" Buffalo Cab Co. v. Gurley, 134 Ga.App. 167(1), 213 S.E.2d 545 (1975). As will be seen infra, the report used by the physician/witness was properly admitted as a business record. Furthermore, the expert witness used the report only to acquire the result of one test--the 220 milligram percent reading. That part of his testimony which could be labeled opinion (that appellant had consumed "some alcohol" and that the reading reflected a "markedly elevated" blood alcohol level) were opinions of an expert available for cross-examination. Thus, the testimony was not hearsay. Nor was it irrelevant. Appellant had earlier testified as an eyewitness to the collision and had admitted consuming alcohol immediately before the event. His ability to perceive was an important issue, and the physician's testimony confirmed the fact that appellant had alcohol in his bloodstream.

4. The hospital's acting custodian certified that the lab report admitted into evidence was a true and correct copy of the original record. In light of this certification, it was not necessary to offer the testimony of the medical personnel who performed the various laboratory tests and prepared the report as a foundation for admitting the...