Seaboard Coast Line Railroad v. Smalley
Seaboard Coast Line Railroad v. Smalley
Opinion of the Court
The defendant appeals from a judgment for the plaintiff in this Federal Employer’s Liability Act action and assigns as error two rulings of the trial court on the admissibility of evidence.
1. The first assignment of error is on the trial court’s excluding defendant’s Exhibit 6, a certified copy of the emergency record, University Hospital, relating to the plaintiff’s treatment.
The exhibit was offered initially under the business records statute (Code Ann. §38-711) as part of the testimony of the Chief Medical Record Librarian of University Hospital, and was objected to by the plaintiff on the ground that it contained a medical diagnosis of injury by a physician who was not present to testify and also contained a statement showing the place of the plaintiff’s injury as a washroom. (The plaintiff contended the injury occurred when he stepped off one of the defendant’s engines and fell on the roadbed.) The plaintiff objected to the medical diagnosis under Knudsen v. Duffee-Freeman, 95 Ga. App. 872 (99 SE2d 370), and the statement showing the place of injury, on the ground that it had not been shown that
The plaintiff’s argument, that the exhibit should be excluded because of the witness’s lack of ability to identify the plaintiff as the person giving the information, is unmeritorious. Code Ann. §38-711 specifically provides, "All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility.” (Emphasis supplied.) This has been held to apply to invoices (Guthrie v. Berrien Products Co., 91 Ga. App. 45 (84 SE2d 596)); delivery slips (Saye v. Athens Lumber Co., 94 Ga. App.
If the record were offered in proof of the facts stated in it a valid objection might well have been raised as to portions in which opinions, etc. were expressed. But that is not the case. The trial court erroneously excluded defendant’s Exhibit 6 from evidence.
2. The trial court did not err as the defendant contends, in allowing the plaintiff’s witness to testify as a rebuttal witness as to the condition of the defendant’s railroad yard generally. The record discloses that the defendant’s
Judgment reversed.
Dissenting Opinion
dissenting. The majority opinion reverses the trial judge and grants a new trial in this damage suit on the sole ground that error was committed in the refusal to admit in evidence a certain document, which purported to be a writing containing information given by the plaintiff to the hospital authorities at the time he entered same. Plaintiff contended he was injured on the right-of-way of the railroad, and the railroad sought to impeach him by showing that he had stated to the hospital authority that he was injured in the washroom.
On cross examination, the witness who purportedly took the written statement testified that she had no independent recollection of this particular transaction, except for remembering her own handwriting; that she could not recognize the patient in the courtroom; that sometimes the per
The case sub judice is on all fours with Cheek v. State, 118 Ga. App. 385 (3) (163 SE2d 856) in which this court affirmed the trial judge in refusing to admit in evidence a written record made by an investigating officer, offered as a business record, for the purpose of impeaching a witness. This court states: "But the officer testified that he did not remember who made it. Since the reported statement to the investigating officer was not identified as having been made by a particular person, it was not admissible to impeach any witness.”
The majority opinion contends that under Code Ann. §38-711 and numerous decisions by this court "iacfe of personal knowledge by entrant or maker may be shown to affect its weight, but they shall not affect its admissibility.” The majority opinion then cites eight cases of this court, but not one is in point. None deals with the question of seeking to impeach a witness by introduction of a writing which contains information, impeaching in character, without introduction of evidence that the witness supplied the impeaching information.
Further, the record is silent as to appellant’s having laid the proper foundation for offering impeaching evidence. Code § 38-1803 provides for the impeachment of a witness by proof of prior contradictory statements, but certain preliminary requirements are made essential ingredients of such impeaching effort. Without same, no error can be shown by the losing party in the lower court. Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1 (9) (5 SE2d 214); Johnson v. Roberson, 88 Ga. App. 548 (7) (77 SE2d 232). The transcript shows at p. 49 that the railroad’s counsel started into this question with plaintiff Smalley, but Smalley denied giving
In addition, the excluded writing could not have damaged the railroad in its contention that it would impeach the plaintiff as to whether he was injured on the railroad’s right of way or in the washroom. The railroad’s switchman, Roy Gardin, who was on duty at the time, testified that the injury occurred on the railroad’s right of way (Tr. pp. 7-17). Claude M. Hale, its terminal trainmaster, on duty at the time, introduced as a witness by the railroad, also so testified (Tr. pp. 97-100).
This case was tried by a jury; the verdict of that jury has the approval of the trial judge; and I would affirm the lower court in refusing to grant defendant’s motion for new trial.
I am authorized to state that Judges Pannell and Quillian concur in this dissent.
Reference
- Full Case Name
- Seaboard Coast Line Railroad Company v. Smalley
- Cited By
- 8 cases
- Status
- Published