Opinion
48668.
SUBMITTED OCTOBER 1, 1973.
DECIDED OCTOBER 29, 1973. REHEARING DENIED NOVEMBER 15, 1973.
Action for damages. Fulton Superior Court. Before Judge Alverson.
D. W. Krasner, Norman Krasner, William E. Spence, John McGuigan, for appellant.
Henning, Chambers Mabry, Edward J. Henning, for appellees.
1. Any stage of any trial where one party has the right to present oral testimony, the other party has a right to offer evidence tending to impeach the credibility of such witness by any method sanctioned under Code Ch. 38-18. It follows that where the defendant is in default in an action for unliquidated damages, and the plaintiff offers witnesses to establish the amount of damages, the defendant has the right to offer evidence otherwise admissible for purposes of impeachment.
2. The record of an indictment and conviction for a crime involving moral turpitude was properly admitted in evidence in an attempt to impeach the testimony of the plaintiff, over the objection that it was too remote in point of time.
3. Under the specific facts of this case, the record of similar litigation by the plaintiff over a period of years, involving allegations of similar automobile collisions and similar injuries, was admissible as going to the credit of the plaintiff in his testimony regarding physical injuries allegedly sustained in the action on trial.
SUBMITTED OCTOBER 1, 1973 — DECIDED OCTOBER 29, 1973 — REHEARING DENIED NOVEMBER 15, 1973 — CERT. APPLIED FOR.
Norman Krasner field suit against Red Top Cab Co., Inc. and its driver Lester, alleging that his automobile had been hit from the rear by the defendant and he had sustained injuries to his back, groin, cervical vertebrae, chest, stomach, and left leg and ankle. The defendants allowed the suit to go in default, and it went to trial on the question of damages only. The plaintiff testified to his injuries and damage to his automobile, and his doctor also testified to having operated on him shortly after the collision for recurrent hernia, which eventually resulted in the atrophy of a testicle, and further gave some medical history showing that the plaintiff had various hernia operations, beginning in 1960, had severe stomach and back injuries following an accident in 1964, and also had medical difficulties with his legs. The defendant then offered a witness who had examined the defendant's taxicab following the collision, and who testified that a headlight and slight bend in the grill work, a total damage of less than $50, was the extent of injury to the taxicab. The defendant also offered the records of six other lawsuits in which Krasner was plaintiff suing for personal injury resulting from automobile collision, the dates being 1950, April and December of 1951, 1959, 1964, and 1968. Most of these alleged severe back and neck injuries; the later one included hernia and left leg injuries. Also admitted over objection was the record of a two-count indictment and conviction, in 1937, for the offense of cheating and swindling, alleging that the plaintiff, who was at that time practicing law, conspired with two of his clients to represent them as two other people known to have been passengers involved in a streetcar collision for the purpose of mulcting the company of damages.
The jury found a general verdict in favor of the defendants, and plaintiff appeals.
1. Various enumerations of error complain of testimony elicited from the plaintiff on cross examination, and certified court records introduced in support thereof, to the effect that between 1950 and 1968 the plaintiff had filed seven damage suits against separate defendants alleging injuries resulting from automobile collisions, all of them very similar to the injuries alleged here. The defendant also acknowledged having given a deposition in 1968 in relation to the 1959 action, which is still pending, in which he ascribed to that collision the same injuries he now testifies were contracted in 1965 in this action.
Written statements by a witness and allegations in pleadings in other cases contradictory to his testimony on trial may be introduced in evidence for purposes of impeachment. Hodges v. Haverty, 115 Ga. App. 199 (2) ( 154 S.E.2d 276); Manley v. Combs, 197 Ga. 768 (2) ( 30 S.E.2d 485); Buschbaum v. Heriot, 5 Ga. App. 521 ( 63 S.E. 645); Code § 38-1803. The trial court did not err either in allowing the evidence here attacked, or in overruling the motion to suppress it offered prior to the trial. It is further argued that the papers involved in the other lawsuits were not in fact introduced in evidence and were erroneously allowed to be taken out with the other evidence to the jury room. Two of the exhibits were specifically allowed and one was specifically withdrawn. The defendant stated that he was tendering all the remaining exhibits in evidence, and we understand from the ensuing colloquy that it was the intention of the court to allow all in evidence, since no difference appears between those specifically allowed and the tendered remainder.
2. Attempting to carry out a conspiracy to mulct a defendant of damages for personal injury by knowing misstatement of the facts involves moral turpitude, proof of conviction of which is one method of impeaching a witness. Under Georgia law, lapse of time does not render the conviction too remote to be admissible. Woodward v. State, 197 Ga. 60, 61 (8) ( 28 S.E.2d 480). The rule generally is that the inquiry into the witness' character should relate primarily to a time reasonably near that of his testimony. 98 CJS, Witnesses § 500, p. 392. It is sometimes held that where bad reputation at the time of trial is first shown, it may properly be brought out that this is of long standing. See State v. Miller, 156 Mo. 76 ( 56 S.W. 907). In the present case, granting that the conviction is very remote in point of time, we have already shown that a jury inference would be permissible from the long line of damage suits filed, all claiming similar injuries, none of which appear to have been resolved in the plaintiff's favor, that he had been successfully impeached. The first of these cases was filed in 1950, sought damages for back injuries, and was dismissed for want of prosecution. The second one, seeking damages for back and neck injuries, was filed in 1951, and resulted in judgment for the defendant. We make no judgment upon these facts except to say that the evidence was admissible, that the jury was authorized from the reiterated claims to disbelieve his claims for present injuries, and, if this is so, the 1937 conviction is not unrelated to or remote from this line of conduct, and may have influenced the court in exercising his discretion in favor of admitting it. Under these facts the ruling was proper.
3. It is earnestly contended by the appellant that since the defendants were in default and this entitles that plaintiff to "verdict and judgment... as if every item and paragraph of the petition were supported by proper evidence" any verdict not finding in his favor in some amount is illegal. Code Ann. § 81A-155. Because this is an action for unliquidated damages, however, the plaintiff is "required to introduce evidence and establish the amount of damages... before a jury." The plaintiff did introduce evidence. His own was obviously disbelieved, and since the jury was entitled to find him successfully impeached he cannot complain. The only remaining evidence was opinion testimony of his physician that the back injuries and hernias suffered on previous occasions were exacerbated by the 1965 injury on which this suit is based, and were again aggravated in a 1968 collision. This was, however, opinion evidence, which is never conclusive upon the jury. Continental Cas. Co. v. Wilson-Avery, Inc., 115 Ga. App. 793 (5) ( 156 S.E.2d 152). If the jury had no evidence credible to it upon which it could determine the injury to the plaintiff and damage to his automobile so that some dollar amount could be extrapolated, the plaintiff failed to carry the burden required by statute. No enumeration of error raises the question of whether, in this situation, the court should have instructed the jury to find nominal damages in favor of the plaintiff if he failed to prove entitlement to any particular sum to their satisfaction.
The remaining enumerations of error are without merit. Those relating to the court's charge have been examined and found substantially correct; they will not be discussed here as no objections to them were offered in the trial court.
Judgment affirmed. Bell, C. J., and Quillian, J., concur.