*1
had the
already
insured
surrendered control of the
policy
Virginia
Mitchell,
so,
Mrs.
K.
and if
did she ever willingly
return
knowingly
the insured? And
possession
even
though
ill,
the insured
required
he was
to do whatever
his mental and physical capabilities enabled him to do to-
compliance
wards
with the
provisions
policy
of insur-
ance as to
"change
beneficiary”—one
requirement
such
(the
being
"written notice”
form
executed
change
be filed at
policy)
the home office of the company. It ap-
pears
the record that
form
this
was not filed until
July 27,
days
1970—three
after
the insured’s death. The
law
required
insured to do all he was
able
substantially
to do to effect a change.
Coleman,
Faircloth v.
47026, 47027. McDANIEL v. GANGAROSA et al.
(two cases). Argued April 3, 1972— 1972— Decided June Rehearing July denied *2 Finch, Finch, McCranie, E.
Ross & Baxter H. Charles appellants. Williams, Savell,
Savell, Angel, Cox & Edward L. Wil Goodman, liam for appellees. S. Judge. 1. The laws of the United States made in
Stolz, States, are, of the Constitution of the United pursuance treaties, with the U. Constitution and along S. U. S. Const., VI, law of this State. U. S. Art. Par. 2 supreme (Code (Code 1-602); Const., XII, I, Ga. Art. Par. I Sec. § 2-8001). "(a) Ann. provides: 28 U. S. C. 1733 Books or § records of account or minutes of proceedings any depart- ment or of the United agency States shall be admissible to *3 act, prove the transaction or occurrence as a memorandum (b) of which the same were made or authen- kept, Properly books, records, ticated or copies transcripts any of or papers any documents of of the department agency United equally States shall be admitted evidence with the origi- (b) nals thereof.” 44 C. provides: U. S. "There shall §2112 be an official seal for National the Archives of the United which shall be judicially States noticed. When a copy section, reproduction, furnished under this is authenticated by Administrator, the official and by seal certified the the copy reproduction equally shall be admitted evidence with the from which it was made.” original (Emphasis sup- plied.)
The subject preserved records were and classified on file by Secretary at the National Personnel Records Center the 3103, Army, of the 44 U. C. and the of S. Administrator § the General Administration of legal custody Services has "A may records. CFR 105-60.103. officer deputy for the officer custo- properly certify nominally having chief the superior and title of name of form the in point and dy, (3d Ed.), Evidence Wigmore be used. should (61 274, 277 (8).” State, 207 Ga. Pressley v. §1633 by certified 113). properly in effect Hence, the records Administration the General Services Administrator Branch Reference Military of the the Chief deputy, his custody of actual, legal, as well as A., had who of the G. S. the elements established certificate This the records. incumbency, authority, authentication—the custodian—as certifying signature of the genuineness Mach See Government. of the Federal for records approved State, v. have records and certified authenticated properly
Such under in this State in evidence held admissible been State, Pressley cases in the criminal authority above rea- no State, apparent There is supra. and Mach v. supra, well, as in civil cases admissible being for their not son are admissible. their contents long as counsel and both the trial court colloquy between 2. makes clear the records admission of respect with matter and irrelevant to omit intention the court’s im- purpose for the limited records to admit he to the effect that testimony the plaintiff’s peachment and couldn’t remem- army in the any problems have didn’t of the records deemed Portions call. going ber sick than and other diagnoses conclusions constitute doctors’ the face were obliterated symptoms, readily observable in evi- admission to their prior of the records copies of the con- admitted However, portions if even some dence. if the records objectionable which would be matter tained illness- the plaintiff’s evidence of original were tendered admissi- affect their this did not es, symptoms, injuries, In impeachment. purpose limited bility for the *4 any court and charge record of the in the absence to the charged as was not jury properly that the contention so evidence, were it is assumed of such purpose instructed. for the authority appellants urged
The cases 670
contention that
the evidence in the
case was inad-
present
missible
of improper
because
authentication and inadmissi-
therein,
ble
distinguishable
matters
are
in that the records
in
there
be
either
sought
admitted
evidence were
evidence,
offered
properly
original
authenticated
Additionally,
or both.
Ann.
rely upon
some cases
Code
38-§
(Ga.
177)
711
L.
and related
for
p.
statutes
admission of business records for
of proof
of a
purpose
fact,
case,
whereas
the present
government
records
are
under
impeachment
admissible
the federal statute for
Hence,
if for no
purposes,
other
Mar-
purpose.
such cases as
(110
Baldwin,
tin
344);
v.
Furthermore, even if the admissibility of the evidence doubtful, it admitted, was properly with its weight left State, jury. determination Green v. (4) App.
It that the follows trial court did not err in admitting the records in evidence in entering the judgments verdicts.
Judgments Bell, J., Hall, J., Eberhardt, C. P. P. affirmed. J., Deen, Quillian Clark, JJ., concur. Pannell and Ev- ans, JJ., dissent. Judge, McDaniel dissenting. Gangarosa
Evans, sued. damages because of personal injuries sustained an auto- mobile mishap, the trial during defendant sought pages introduce 82 history duly medical au- plaintiff, thenticated the proper department of the Federal Gov- ernment. Plaintiff objected upon ground that each of the records contained diagnoses McDaniel’s condition aby physician whom plaintiff deprived as to the right of cross Stipulation examination. was entered into
671 that agreeing, court sides, counsel for both between to each docu- separately as made was considered objection ruled out The court thereafter grounds. ment said upon it, of admitted some to, objected of the matter but some records as plain- being government hospital purportedly following: contained, among things, other tiff, which . .” back, [illegible] . . . . Pains at side of 1956. "Aug. "1600 Pain persisting.” Pain in R side still "Aug. 8 1956. entries.) (Several For "19 56. illegible Sept. other worse.” area, [illegible] . . . burning stomach . . week past pain "11 [doubtful].” meals, Dizzy nightly pain.” after "9/4/56. symbol] night, [medical he left knee last 56 cc twisted Sept. good in the normal health "Patient was heat treatment.” flank aching right when he awoke with Aug. until 5 — other many symptoms "t. he has persisted.” which pain aches, "Pain miscellaneous etc.” dizzy spells, stomach pains, other Aug. many symptoms flank 5 56.” "He has R & side — aches, etc.” dizzy spells, miscellaneous pains, stomach 4 motorcycle yrs. Hit head in accident "Fx R clavicle 1953. frontal & saw dr.” "2. Severe retrobulba ago but never at overnite.” "16. concussion l-2x/yr., disappears headache an "26 56. Pt. com- Sept. to blow from back of ax.” due ” night.’ can’t at plains 'just sleep he contained much hear- The matter admitted into evidence "pain” necessarily The references to resulted say. many a to the con- by plaintiff physician; from statements only plaintiff of the opinion physician; clusion first-hand knowl- his own have pain himself could feel had Also, the been plaintiff thereof. edge statements ago; four motorcycle years in a accident hit on the head a at 14 due having as to his concussion and the statement axe, See Paulk hearsay. from the of an to blows back (3a) (154 The doc- Thomas, diagnoses, opinions, physician’s contain the uments also conclusions, etc. impressions, (Ga. 1952, p. L. on Code Ann. 38-711
Plaintiff relies 177) of the Court many Supreme decisions many, and the statute, construing this said State Appeals and Court These decisions inadmissibility said matter. diagnoses physicians hold that opinions records are not admissible. hospital contained decision, in a bench Georgia, full Supreme Court (2c) 344) Baldwin, 215 Ga. holds: Martin v. of a Administration and Veter- hospital "Records Veterans’ office, Administration made in the course regular ans’ hospital office, which evi- opinion contain business dence, conclusions, impressions, matter conjecture, diag- noses physicians or other parties, are not admissible *6 in evidence under Code Ann. §38-711, since are not the contemporaneous events, records of acts, transactions or oc- currences as required by act, the but are opinions or conclu- sions which or may may be based upon facts, and lack that reliability of records which exist in the routine recording in facts regular business books other records.” (Empha- sis - supplied.) This question is ably on discussed pp. 296 302.
In a more recent decision, Wesley State,
v.
(2)
673
laboratory
in evidence
error to allow
"It was harmful
did not
person
of this
but
opinion
showed the
which
report
contrary'to jus
Such
is
qualified.
that he
show
Camp,
Camp v.
have
excluded. See
and should
been
tice
(97
Baldwin,
125);
v.
The under a Fed- records are admissible hospital contends these statute, But a careful read- eral wit: 28 USCA 1733. for authority will it is not the. ing of that statute show that Said statute by majority opinion. taken is position "(a) or or minutes pro- follows: Books records account of of or the United States ceedings any department agency of of the.act, or transaction occur- shall be admissible prove or as a memorandum of which the same were made rence (B) any copies or kept. Properly transcripts authenticated records, books, any department or papers or documents in of the be admitted evi- United States shall agency equally originals dence with the thereof.” all, First of the documents introduced in the case sub ju- dice were not "books or records of account” nor were of proceedings any "minutes or department of the agency Thus, States.” is completely inapplicable United this statute Secondly, to the matter involved here. only purpose which the Federal statute to make or purports such books act, transaction, minutes admissible is to "the or prove oc- governmental department currence” agency; or way there is no that this language can be construed to statements, dizziness, mean the exclamations of pain, etc. of (who patient is not a governmental department agen- thereof) cy, any part are this statute made admissi- instance, ble. For conceding that arguendo the doctor’s statement that he administered an opiate patient would statute, be admissible under this Federal provided the doctor is a part governmental department way still the in agency; and manner which the re- patient said, acted to the what drug, he whether he suffered pain therefrom, and hearsay evidence, other not be would admis- sible. Nor would the doctors’ opinions, impressions, conclu- sions, conjectures diagnoses be admissible. State, majority opinion cites and Pressley relies on 113), but that opinion was writ-
ten two before years the "business records” statute was enacted. case,
Further, in that the sole objections to the records were "that the not copy was duly authenticated there nowas certificate that the certifying signature officer’s form; genuine, or that the certification was in proper did certification with the comply laws this State with record; reference to the a authentication of there was no record; statement copy is copy there was Woods,-who no certificate that E. E. signed Acting Judge certificate; Advocate Navy, General fact signed the and there was no seal annexed.” *8 words,
In other the to objection sole the authentic- and ity authenticating method the copy. question The testimony” "hearsay conclusions, diagnoses, opinions, physician examine the cross right to being deprived at case Pressley in the was not made the record made who majority the support not Hence, Pressley case does the all. State, 109 Mach v. relies majority the Again, opinion. (135-SE2d But, the that case 154, 159 Ga. cop- was that "these record .the government to objection sole not because admissible records were public ies reach case does not so this not authenticated” properly majority’s support "hearsay” does question of opinion. of affirmance judgment
I therefore dissent judgement-. and I reverse the would the majority opinion, in this joins Pannell Judge to state that I am authorized dissent. CAMPBELL.
47105. THOMAS v. notes, defendant In an action on two Judge. Quillian, aof from the and from the direction judgment appeals, against verdict the defendant on his counterclaims. landlord The were landlord and tenant. The parties here damage to during tenancy one note cover procured The other beyond normal wear tear. property after had out. It procured note was the tenant moved rent in the amount of unpaid was for five months back $550, of which the tenant had paid $280 $300 weekly instalments. on the
The tenant several action up set defenses note. He filed four for diminished also counterclaims failure value of the because of landlord’s premises defects, i.fe., roof, a a disconnected leaking certain repair chronically an and a lavatory, bathroom unusable shower pleadings alleged in the kitchen leaking pipe sink. However, while there dollar for the diminution. value concerning alleged- existence of the testimony