Opinion
57375.
ARGUED MARCH 5, 1979.
DECIDED MAY 3, 1979.
Action for damages. Fulton Superior Court. Before Judge Weltner.
Long MacDowell, Nick Long, Fred MacDowell, for appellant.
Long, Weinberg, Ansley Wheeler, Palmer Ansley, Clyde E. Rickard, III, Rosa Beatty Lord, Henning, Chambers Mabry, Eugene P. Chambers, Jr., for appellees.
The appeal is from a verdict for the defendants, Eckerd Drugs of Georgia, Inc., and Rafael Benitez, d/b/a R. B. Maintenance, in a "slip and fall case." The complaint alleged that the plaintiff slipped on an accumulation of floor conditioner in one of Eckerd's stores, causing permanent injuries. Benitez is the owner of a service firm which is alleged to have been negligent in applying the conditioner, in failing to remove the excess properly, and in failing to post warning signs. Eckerd is alleged to have been negligent in failing to warn the plaintiff of the danger and in allowing the dangerous condition to remain.
The plaintiff testified that after he fell, with one of the store's employees about five feet from him, he observed that the floor had splotches and a muddled looking color. There was testimony concerning the manner in which the floor conditioner had been applied on the night before the incident by defendant Benitez' custodial service. The jury returned a verdict for the defendants, and the plaintiff appeals the denial of his motion for new trial. Held:
1. The first two enumerations of error are directed towards the trial court's charge on defendant Eckerd's duty to protect its invitees against hazardous conditions existing on the premises. The plaintiff complains that the trial judge improperly charged the jury that in order to find for him they had to find that Eckerd had "actual notice" of the hazardous condition. However, the transcript shows that the court correctly charged that Eckerd could be held liable if it had either actual or constructive notice of the hazardous condition and failed to exercise ordinary care in remedying it. See Winn-Dixie Stores v. Hardy, 138 Ga. App. 342 ( 226 S.E.2d 142) (1976); Wootton v. City of Atlanta, 101 Ga. App. 779 ( 115 S.E.2d 396) (1960). These enumerations of error are without merit.
2. The plaintiff contends that the lower court erred in allowing defense counsel to cross examine him concerning previous accidents in which he had been involved. It is asserted that it was error to allow evidence about the injuries which he had sustained in the previous accidents without first establishing the degree and type of injury by expert testimony, and also that the "other transactions" rule (Code § 38-202) was violated. It is the general rule in tort injury cases that similar acts or omissions on different occasions are not admissible, Hawkins v. Benton Rapid Express, Inc., 82 Ga. App. 819 ( 62 S.E.2d 612) (1950), "unless the nature of the action . . . renders necessary or proper the investigation of such conduct." Code § 38-202. In this case the trial judge meticulously confined the limits of the cross examination to testimony relevant to damages, and properly instructed the jury as to the limited purpose for which the evidence was admitted. In any event, the verdict for the defendant renders harmless any possible error going only to the question of damages. Lewyn v. Morris, 135 Ga. App. 289 ( 217 S.E.2d 642) (1975).
3. The plaintiff complains that deposition statements of defendant Benitez, admitted only for the purpose of impeachment, were improperly ruled inadmissible as the basis for a hypothetical question for the plaintiff's expert witness. Facts used in the question must have evidentiary foundation at the time they are propounded, English v. Milby, 233 Ga. 7 ( 209 S.E.2d 603) (1974), and must be facts established in evidence. Norman v. Allen, 118 Ga. App. 394 ( 163 S.E.2d 859) (1968). "Though declarations made out of court by a witness may be used to impeach the witness, they cannot be treated as substantive evidence to establish the facts which they affirm. . ." Watts v. Starr, 86 Ga. 392 ( 12 S.E. 585) (1890); Brock v. Avery Co., 99 Ga. App. 881, 888 ( 110 S.E.2d 122) (1959). This enumeration of error is without merit.
4. Two enumerations of error complain of the admission of certain hospital records containing hearsay. It is clear that the documents were admitted for the purpose of impeachment of the plaintiff's testimony concerning his health and employment history. It was admissible for this purpose. See State Hwy. Dept. v. Raines, 129 Ga. App. 123 ( 199 S.E.2d 96) (1973). The question is academic in any event as the evidence addressed the issue of damages. The jury found against the plaintiff on the question of liability, rendering harmless any error in this regard. See Christiansen v. Robertson, 139 Ga. App. 423 ( 228 S.E.2d 350) (1976).
5. A petition filed by plaintiff in an earlier lawsuit which also tended to impeach his testimony in the instant case concerning his damages was also admissible. Krasner v. Lester, 130 Ga. App. 234 ( 202 S.E.2d 693) (1973).
6. The last error enumerated complains that comparative negligence was improperly charged although it was not in issue. There was evidence to show that negligence on the part of appellant could have contributed to his fall. Hence, the charge was proper. See Bentley v. Ayers, 102 Ga. App. 733 ( 117 S.E.2d 633) (1960).
Judgment affirmed. Underwood and Carley, JJ., concur.