The trial judge erred in denying the motion for new trial.
Kenneth P. Knudsen, Jr., filed an action in Fulton Superior Court, against Duffee-Freeman, Inc. The petition alleged in substance: the defendant corporation was at all times mentioned in the petition the owner of the business building known as 843-845 Peachtree Street, N. E., Atlanta, Georgia; the defendant corporation leased to several tenants office space on the second floor of the business property; the means of access to the second floor is by an entrance directly on the street and is designated as 843 Peachtree Street, N. E.; the entrance way consists of two flights of stairs, the first flight leading from the street level, consisting of fifteen steps rising to a height of approximately nine feet four inches to a five feet deep landing; the second series of steps continues upward from the landing sixteen additional steps; there are provided on both the left and the right side of the stairway handrails located approximately two feet eight inches above the steps, there being two sets of handrails, one terminating at the end of the first flight and the other commencing at the ascent upon the second flight; defendant corporation retained control, supervision and qualified possession of the common stairway for the purpose of maintaining the said stairway for the use of the business tenants, their customers and invitees; on October 10, 1952, at approximately 4 p. m., petitioner as an invitee, in order to fulfill a previously made mutual business appointment with a tenant of one of the leased offices located on the second floor of the defendant's building, entered the stairway from the street for the purpose of ascending the stairway; petitioner reached the landing at the head of the first flight of stairs on the stairway and proceeded to walk up the second flight when he reached approximately the second step of the second flight; at this point of petitioner's ascent he observed a coat hanger attached to his trouser leg; petitioner stopped in order to remove the coat hanger and in so doing placed his hand on the right handrail in order to stabilize himself; when petitioner placed his hand on the handrail it immediately gave way and came loose from the wall, causing him to fall backward on the landing and to turn over and over down the first flight of fifteen steps to the ground floor; the section of the round wooden handrail on which petitioner placed his hand was approximately three feet in length and was completely detached, together with its metal wall bracket, from the wall, coming to rest on the ground floor where petitioner lay; petitioner is six feet one inch tall and weighed at the time of the fall approximately 214 pounds; during the fall petitioner violently struck his back and head against the edge of the steps and landing causing him serious and permanent injury; the three-foot section of the round wooden handrail was not well secured, but was in a loose and dangerous condition, insufficient to provide support when used for support or balance; the three-foot section of the handrail was attached to the plaster wall by means of a
metal wall bracket at the lower end, the wall bracket being loosely connected into the plaster wall by means of screws; the wall bracket was joined to the lower end of the wooden three-foot section of the handrail by two screws; at the upper end, the three-foot section of handrail shared the next wall bracket with the next length of handrail (approximately thirteen feet long) and the three-foot section was loosely joined to that common wall bracket by only one screw; the three-foot section of the handrail had been in a dangerously loose condition for a period exceeding one week prior to the time of petitioner's fall; the defendant through its janitor or other agents, whose responsibility it was to maintain the handrail on the stairway, could by the simple method of placing the hand upon the three-foot section to test for stability of the same, have discovered the dangerous loose condition, and in the exercise of ordinary care to render the premises safe for invitees, such as the plaintiff, the defendant should have known of the condition by discovery and inspection and should have repaired it; that petitioner while in the process of ascending the stairway and in using the stairway and the handrails thereon for the specific purpose for which they had been provided by the defendant, had no warning or knowledge nor an appreciation of the risk involved in using the three-foot section of the handrail at the beginning of the second flight of steps, and that upon touching the same for support it would become detached; that petitioner did not see the loose condition of the screws attaching the said three-foot section of the handrail inasmuch as the screws and the wall brackets on both ends of the handrail were on the underside of the handrail, being below the line of vision of petitioner while he was ascending the stairway, the handrail being of a height of approximately two feet eight inches above the step and petitioner being a man six feet one inch in height; that petitioner was removed by ambulance from the foot of the stairway and taken to the Crawford Long Hospital where he was confined for nineteen days; that as the result of the fall down said stairway, the blows resulting from striking the stairs, petitioner sustained serious and permanent injuries due to damage resulting from a head concussion, contusions of the spinal cord and soft tissues of the neck, upper and lower back and posterior chest. The plaintiff charges negligence to the defendant as follows: in that the defendant corporation failed under all of the circumstances alleged to exercise ordinary care to render the stairway, of which defendant had qualified possession and control, safe for business invitees such as petitioner by providing safe and well secured handrails thereon; in failing to inspect and discover the dangerous condition of the three-foot section of handrail and in failing to repair same; to make the use thereof safe for invitees, all of which in the exercise of ordinary care defendant was bound to do; in failing to warn invitees, such as petitioner, that the said three-foot section of the handrail was unsafe; in that the defendant, as owner of the building in control of and responsible for the maintenance of the stairway and handrails thereon, owed to petitioner, as an invitee, whose presence upon said stairway the defendant was bound to anticipate, a duty of not exposing petitioner to the dangerous and deceptive situation created by the said loose and insecure three-foot handrail, which condition the defendant in the exercise of ordinary care under the facts alleged should have known by inspection and discovery and which, in the exercise of ordinary care, should have been rendered safe for the use intended.
The defendant filed an answer in which it denied any negligence on the part of its agents or employees.
The case proceeded to trial. Both parties introduced evidence and the jury returned a verdict for the defendant.
The plaintiff filed a motion for new trial on both general and special grounds, but later abandoned the general grounds. The trial judge denied the motion, and the plaintiff excepted.
1. Special grounds 4 and 5 need not be passed upon. They relate to the foundation laid for the evidence we hold in the other divisions of this opinion to be inadmissible.
2. Ground 6 complains of the admission in evidence of a mass of documentary evidence, in which were contained impressions and conclusions of various parties as to the plaintiff's mental state and that he was a malingerer. These documents came into existence several years before the trial, and did not purport to convey any view or impression as to such matters at the time the plaintiff was alleged to have been negligently injured by the defendant.
Ground 7 complains of a letter dated October 3, 1938, written by one who purported to be a physician to the U. S. Employees' Compensation Commission. The letter contained a diagnosis of the plaintiff's mental condition as a malingerer. The letter was objected to on the ground: "that the document had not been definitely authenticated by the custodian who brought the record into court in that it had not been shown that he had any knowledge of or that he had had any part in keeping of the records, the evidence showing simply that the witness had been employed during the period of time involved at Savannah, Georgia, and then in Jacksonville, Florida, and that the records came to him from Washington, and the first time he had ever seen them was when he received them from Washington.
The evidence was further objected to on the ground that it was hearsay, purporting to be a report of opinion evidence by a party who did not state that he himself had made any examination insofar as the patient was concerned but who merely reported a consolidated opinion and diagnosis of this particular party by other individuals, and the introduction of the evidence was an attempt to introduce opinion evidence when the person who expressed the supposedly expert opinion was not before the court for cross-examination.
The evidence was further objected to in that the purported report from the medical officer in charge had attached to his report a purported copy of an opinion by some party designating himself as an "M. D." without his name even being signed to the report, and the attached document being an opinion of Dr. Eric Oldberg was hearsay to Dr. Rose, the medical officer in charge who signed the letter; and Dr. Rose himself, who purportedly made the entry, if he were on the stand would not be allowed to testify as to what Dr. Oldberg said.
The evidence was further objected to on the ground that the evidence was irrelevant and immaterial in that "the evidence offered would tend to show that Mr. Knudsen did not sustain any serious injury in 1936 or in 1938, which fact would be irrelevant and immaterial to the inquiry in this case even if proved and believed by the jury, since the only relevancy of past injuries of the plaintiff to the present injury would be to show what effect if any such past injuries had on the plaintiff's present condition, and a conclusion of a person that the plaintiff did not suffer any serious injury in 1938 would not be relevant or material to this inquiry."
Code (Ann.) 38-710 provides: "Any photostatic or micro-photographic or photographic reproduction of any original writing or record which may be or has been made in the regular course of business to preserve permanently by such reproduction the writing or record shall be admissible in evidence in any proceeding in any court of this State, and in any proceeding before any board, bureau, department, commission or agency of the State, in lieu of and without accounting for the original of such writing or record. Any enlargement or facsimile of such reproduction shall likewise be admissible if the original of such reproduction is in existence and available for inspection under direction of the court or the agency conducting the proceeding."
Code (Ann.) 38-711 provides: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event shall be admissible in evidence in proof of said act, transaction, occurrence or event, if the trial judge shall find that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. 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. The term 'business' shall include every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not. This section shall be liberally interpreted and applied."
The former Code section simply permits photostatic, microphotographic, and photographic reproductions of original writings or records made in the regular course of business to be admitted in evidence without accounting for the original.
The latter section contains what is referred to by courts of other States and textbooks as the "Uniform Business Records as Evidence" statute. There is no material difference in the Georgia statute and similar statutes of the other States. It makes admissible writing and records kept in the regular course of business, unverified by the person who made such writing or the entries which make up such records. It does not authorize the introduction of papers containing the opinions of experts or the diagnosis of physicians.
Williams, 190 Md. 143, 57 A.2d 782; Morrow v. State, 190 Md. 559, 59 A.2d 325. Dr. Rathbone's report could not be admissible under that section of the Code. This report was based on a medical opinion which could only be given by one skilled in reading the X-ray picture and by one who had examined that picture. It was not admissible as a memorandum occurring in the regular course of business, nor was it a verbal act or part of the res gestae or a mere hospital or nursing record. Snyder v. Cearfoss, 190 Md. 151, 57 A.2d 786. When such a technical medical report is offered, the doctor should be subject to cross-examination as to the reasons for his findings. The admission of that report in evidence was therefore error." Baltimore & O. R. Co. v. Zapf, 192 Md. 403 (64 Atl. 2d 139, 6 A. L. R. 2d 401, 405).
Code 38-1710 provides that the opinion of an expert witness is admissible when based upon the proven facts of the case, and our courts have uniformly held that for the testimony of an expert witness to be received, his qualification as such must be first proved. Alabama Great Southern R. Co. v. McBrayer, 65 Ga. App. 153, 157 (5) (15 S. E. 2d 563); Flemister v. Central Ga. Power Co., 140 Ga. 511, 512 (3) (79 S. E. 148). If that prerequisite is not met the opinion of the expert must be excluded. In Glover v. State, 129 Ga. 717, 718 (9) (59 S. E. 816) it was held that the witness was not necessarily an expert in a particular field of science or skill because he professed to be, nor did it necessarily follow that he was not qualified to testify as an expert because he himself was of the opinion that he was not entitled to be so accredited.
Code 38-1705 provides: "The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him."
To construe Code 38-711 to permit the admission in evidence of a letter in which is contained the diagnosis of a party's condition by a witness concerning whose qualification as an expert there is no evidence, and a memorandum opinion not signed by any person but simply enclosed in the letter, when the party in whose interest the letter and memorandum opinion are offered is not afforded the opportunity to examine either the author of the letter or the maker of the memorandum would in effect repeal Code 38-1705 and ignore opinions of our Supreme Court and of this court. Indeed, such an interpretation would mean that the new statute supersedes practically our whole system of jurisprudence.
The danger of such a course, the peril of substituting unverified records and similar evidence to fair trials and liberties of the people is ably treated by Chief Justice Duckworth in Camp v. Camp, 213 Ga. 65
(97 S. E. 2d 125).
Here it must be observed that in some States it has been the practice that proof having little or no authenticity has been accepted by the courts.
The Federal statute, 28 U. S. C. A. 473, 1732, which is similar to our Code 38-711 has been variously construed by the Federal courts. Among those taking a very liberal view is Reed v. Order of United Commercial Travelers of America, 123 Fed. 2d 252.
In New York Life Ins. Co. v. Taylor, 147 Fed. 2d 297, 303, it is said: "Hospital records are no different from any other kind of records kept in the regular course of business. They must be subjected to the same tests as to subject matter. Regularly recorded facts as to the patient's condition or treatment on which the observations of competent physicians would not differ are of the same character as records of sales or payrolls. Thus, a routine examination of a patient on admission to a hospital stating that he had no external injuries is admissible. An observation that there was a deviation of the nasal septum is admissible. Likewise, an observation that the patient was well under the influence of alcohol. But the records before us here are not of that character. The diagnosis of a psychoneurotic state involves conjecture and opinion. It must, therefore, be subjected to the safeguard of cross-examination of the physician who makes it. And accounts of selected items from interviews with patients must be subject to the same safeguard. . . The opinions here relate to neurosis, a condition short of insanity, on which there are countless theories and infinite diagnostic possibilities. It is difficult to conceive of records in which the right of cross-examination is more important than the conjectures of a psychiatrist on a psychoneurotic condition.
"The drastic impairment of the right of cross-examination resulting from the admission of this type of unsworn observation and opinion evidence will be recognized by anyone familiar with the psychology of a jury trial. The unsworn psychiatric diagnosis would be introduced, with appropriate fanfare as to the distinguished character of the alienist who made it, but who is not called as a witness. The opposing party might have plenty of data to shake this testimony on cross-examination, yet he would have to remain silent while a strong prima facie case is made against him. The risk of perjury would be neatly avoided because the real witness is not sworn."
But whatever the interpretation of the Federal statute by the United States courts our rules of evidence and the uniform holdings of our appellate courts require the construction of Code 38-711 that we have given it.
Counsel for the defendant insists that the letters referred to were admissible under the provisions of Code 38-302. That section is a qualification of the hearsay rule and provides that "conversation, letters and replies, and similar evidence are facts to explain conduct and ascertain motives" and hence admissible as original evidence. The letters and other documents admitted, and that we hold should have been excluded were, in part, communications between strangers to the case, not between parties to the case or persons for whose statements the parties might be legally responsible. It is apparent from the holding in many Georgia cases, notable among which are Hickson v. Bryan, 75 Ga. 392 (1), Clarke v. Alexander & Wright, 71 Ga. 500 (5), and Davis v. State, 25 Ga. App. 532 (4) (103 S. E. 819) that none of the documents concerning the admissibility to which this opinion relates were admissible under Code 38-302. Both grounds 6 and 7 of the amended motion show reversible error.
4. Ground 9 is without merit. The evidence admitted over the plaintiff's objection was not admissible but the objection interposed was on the wrong ground and incomplete, hence insufficient to raise the question as to whether the evidence was competent.
5. Special grounds 11, 12, and 13 complain of instructions given the jury as to rules of evidence that certain factual situations should be employed in determining the weight to be given the plaintiff's testimony, the presumption arising from the failure to produce evidence, and the effect of a party having previously made statements contradictory to his testimony. Since the evidence adduced upon another trial may be entirely different in its scope and effect from that submitted on the trial we now review it would serve no useful purpose to pass upon those grounds.
Judgment reversed. Felton, C. J., and Nichols, J., concur.