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Atlanta Transit System v. Biggs

Court of Appeals of Georgia
Feb 13, 1975
213 S.E.2d 87 (Ga. Ct. App. 1975)





Action for damages. Fulton Superior Court. Before Judge Tidwell.

Hansell, Post, Brandon Dorsey, Dent Acree, for appellant.

Rex T. Reeves, R. John Boemanns, for appellee.

1. In this trial of a personal injury action certain medical records of events which took place over ten years prior to the trial were properly excluded from evidence.

2. It was not reversible error to refuse a charge on future damages in the language requested.

3. Assuming that the hypothetical question was not in proper form, where the medical witness limited his answer to criteria in evidence no reversible error appears.


The plaintiff appellee was a passenger on an Atlanta Transit bus on the morning of September 9, 1970, when she sustained injuries as the result of a fall. According to her testimony, supported by that of other passengers, she was leaving by the front door of the vehicle at the same time a number of school children were entering, creating a crowded condition which blocked the driver's view of the exit. As she was stepping out the driver closed the doors and started the bus; she was caught by the doors and then, when the vehicle stopped after moving a few feet forward, fell onto the street. There was medical evidence that certain ligaments and cartilage were torn, that the trunk of a nerve had been injured and that she had suffered permanent disability; other evidence indicated that her present symptoms have an emotional rather than a physical origin. The jury returned a verdict in favor of the plaintiff, and defendant appeals.

1. Error is enumerated on the refusal on the trial court to allow in evidence certain hospital records predating the injury, offered for purposes of impeachment. Four records were offered and one admitted. Two of the others showed hospital visits on entirely unrelated ailments. The fourth referred to a visit on April 23, 1963, for a breast examination. After a question relating to this, the plaintiff was asked whether she recalled telling them back then that she "had lost about 10 pounds in 6 months, and having chills, fever and night sweats," to which she replied that she had chills and fever from a kidney infection. "Q. Do you remember on such occasion you might have told them that your head hurts all the time and your eyes are blurry and dizzy...? A. No, sir, I do not recall. Q. That your ears were infected most of the time? A. No, sir. I don't recall. Q. That your tonsils were bad, you had frequent sore throats, and your heart was often stifled? A. I never had any trouble with my heart other than when I take a lot of aspirin my heart would flutter."

On the six pages of proffered hospital records, this is the only testimony of the plaintiff pertinent to statements, which were shown on the report of April, 1963, as follows: "Head: `Hurts all the time.' Eyes: `Blurring and dizziness in a. m. Ears: `Infected most of the time.' Cardiac: Often `stifled.'" The remaining material was clearly inadmissible. Cassano v. Pilgreen's, Inc., 117 Ga. App. 260 (2) ( 160 S.E.2d 439). As to that above quoted, it is noted that the witness replied only that she did not recall; that if the notes are interpreted as statements by the plaintiff they were made some seven years before the present injury and eleven years before the trial, the statements were not read to her or, indeed, positively identified. It was established long ago that where contradictory statements are offered for impeachment purpose the mind of the witness should be called to them with as much certainty as possible, and if they are in writing they should either be shown or read to him. Estil v. C S Bank, 153 Ga. 618, 627 ( 113 S.E. 552). We recognize that under the authority of McDaniel v. Gangarosa, 126 Ga. App. 666 ( 191 S.E.2d 578) medical records otherwise inadmissible may on occasion be admitted for purposes of impeachment. In that case the irrelevant portions had been obliterated prior to admission. The offer of the entire hospital record here covering a number of years and of completely unrelated ailments, such as breast examination for cancer, varicose veins, kidney infection, etc., and without calling the witness' attention to the purported quotations from her delineation of symptoms, failed to lay a proper foundation for the medical reports, other than the one admitted in evidence.

2. The fact that injuries which occurred several years prior to the trial are still disabling in character is itself sufficient to authorize a jury to find that such injuries are permanent. National Upholstery Co. v. Padgett, 111 Ga. App. 842, 846 ( 143 S.E.2d 494). In the present case there was affirmative testimony to the same effect, and the court charged the jury that sympathy should play no part in their deliberations, and that the plaintiff, to be entitled to recover, must show the defendant's negligence to be a contributing proximate cause of her injuries, "that which, in a natural and continuous sequence, unbroken by any new cause, produces an event." Diminution of capacity to labor, as well as future pain and suffering, are elements of damage, the amount of which is entirely within the enlightened conscience of the jury. There is no fixed rule for estimating them. Ga. Pac. R. Co. v. Freeman, 83 Ga. 583 ( 10 S.E. 277); Atlantic C. L. R. Co. v. Hansford, 85 Ga. App. 507 ( 69 S.E.2d 681); Cohen v. U.S., 389 F.2d 689. Even an estimate of lost future earnings involves a number of problematical factors such as their future increase or decrease in the market place, and all the other vicissitudes of life such as illness and old age. City Council of Augusta v. Drawdy, 75 Ga. App. 543, 547 ( 43 S.E.2d 569). Therefore, an instruction that no damages relating to the future may be awarded unless it is proved "what their extent, if any, will be" might well confuse the jury into believing that a monetary value would have to be shown by a preponderance of the evidence. In view of the charge as a whole, the failure to instruct the jury on future damages in the language requested was not error. Nor was it error, in view of the testimony as to elapsed time and continuance of symptoms, to permit a medical witness to state as an opinion that the plaintiff would need future medical treatment. Central Truckway v. Harrigan, 79 Ga. App. 117 ( 53 S.E.2d 186).

3. A question to a medical witness whether he would relate present depressive symptoms to the 1970 accident was objected to on the ground that the record does not reveal the situation prior to 1970. The doctor's eventual response was, "The only clue that we would have to this would be her job function capability." The plaintiff testified generally that she had no disability prior to the accident. Disregarding this latter fact, it is obvious that the witness to some extent avoided the question, limiting his criterion to job function, and in fact not stating any specific comparison. A medical witness may state a conclusion after indicating the facts on which it is based. Pollard v. Page, 56 Ga. App. 503 (3) ( 193 S.E. 117). When he does so, if the opinion is founded on an insufficient factual basis, this does not make it inadmissible but only goes to its credit. Williams Bros. Grocery Co. v. Blanton, 105 Ga. App. 314 (2c) ( 124 S.E.2d 479). There was in fact no answer to the hypothetical question as posed, and no objection to the answer elicited. Thus no error harmful to the movant appears.

Judgment affirmed. Evans and Stolz, JJ., concur.

Summaries of

Atlanta Transit System v. Biggs

Court of Appeals of Georgia
Feb 13, 1975
213 S.E.2d 87 (Ga. Ct. App. 1975)
Case details for

Atlanta Transit System v. Biggs

Case Details


Court:Court of Appeals of Georgia

Date published: Feb 13, 1975


213 S.E.2d 87 (Ga. Ct. App. 1975)
213 S.E.2d 87

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