McDaniel v. Gangarosa

Court of Appeals of Georgia

McDaniel v. Gangarosa

191 S.E.2d 578, 126 Ga. App. 666, 1972 Ga. App. LEXIS 1247

CourtCourt of Appeals of Georgia

DecidedJune 19, 1972

Docket47026, 47027

StatusPublished

Cited by9 cases

This text of 191 S.E.2d 578 (McDaniel v. Gangarosa) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDaniel v. Gangarosa, 191 S.E.2d 578, 126 Ga. App. 666, 1972 Ga. App. LEXIS 1247 (Ga. Ct. App. 1972).

Pincite

Opinions

Stolz, Judge.

1. The laws of the United States made in pursuance of the Constitution of the United States, are, along with the U. S. Constitution and U. S. treaties, the supreme law of this State. U. S. Const., Art. VI, Par. 2 (Code § 1-602); Ga. Const., Art. XII, Sec. I, Par. I (Code Ann. § 2-8001). 28 U. S. C. § 1733 provides: "(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept, (b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof.” 44 U. S. C. §2112 (b) provides: "There shall be an official seal for the National Archives of the United States which shall be judicially noticed. When a copy or reproduction, furnished under this section, is authenticated by the official seal and certified by the Administrator, the copy or reproduction shall be admitted in evidence equally with the original from which it was made.” (Emphasis supplied.)

The subject records were preserved and classified on file at the National Personnel Records Center by the Secretary of the Army, 44 U. S. C. § 3103, and the Administrator of the General Services Administration has legal custody of the records. 41 CFR § 105-60.103. "A deputy officer may properly certify for the chief officer nominally having custo[669]*669dy, and in point of form the name and title of the superior should be used. 5 Wigmore on Evidence (3d Ed.), 520, §1633 (8).” Pressley v. State, 207 Ga. 274, 277 (61 SE2d 113). Hence, the records were in effect properly certified by the Administrator of the General Services Administration by his deputy, the Chief of the Military Reference Branch of the G. S. A., who had actual, as well as legal, custody of the records. This certificate established the elements of authentication—the authority, the incumbency, and the genuineness of the signature of the certifying custodian—as approved for records of the Federal Government. See Mach v. State, 109 Ga. App. 154, 160 (135 SE2d 467).

Such properly authenticated and certified records have been held admissible in evidence in this State under the above authority in the criminal cases of Pressley v. State, supra, and Mach v. State, supra. There is no apparent reason for their not being admissible in civil cases as well, as long as their contents are admissible.

2. The colloquy between the trial court and both counsel with respect to the admission of the records makes clear the court’s intention to omit hearsay and irrelevant matter and to admit the records for the limited purpose of impeachment of the plaintiff’s testimony to the effect that he didn’t have any problems in the army and couldn’t remember going to sick call. Portions of the records deemed to constitute doctors’ conclusions and diagnoses and other than readily observable symptoms, were obliterated from the face of the copies of the records prior to their admission in evidence. However, even if some of the portions admitted contained matter which would be objectionable if the records were tendered as original evidence of the plaintiff’s illnesses, injuries, and symptoms, this did not affect their admissibility for the limited purpose of impeachment. In the absence in the record of the charge of the court and any contention that the jury was not properly charged as to the purpose of such evidence, it is assumed that they were so instructed.

The cases urged by the appellants as authority for the [670]*670contention that the evidence in the present case was inadmissible because of improper authentication and inadmissible matters therein, are distinguishable in that the records there sought to be admitted in evidence were either not properly authenticated or were offered as original evidence, or both. Additionally, some cases rely upon Code Ann. § 38-711 (Ga. L. 1952, p. 177) and related statutes for the admission of business records for the purpose of proof of a fact, whereas in the present case, the government records are admissible under the federal statute for impeachment purposes, if for no other purpose. Hence, such cases as Martin v. Baldwin, 215 Ga. 293 (110 SE2d 344); Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (99 SE2d 370); Cassano v. Pilgreen’s, Inc., 117 Ga. App. 260 (2) (160 SE2d 439); Douglas v. American Cas. Co., 106 Ga. App. 744 (128 SE2d 364); Walburn v. Taunton, 107 Ga. App. 411 (130 SE2d 279); Hirsch’s v. Adams, 117 Ga. App. 847 (162 SE2d 243); and Mabry v. Henley, 123 Ga. App. 561 (181 SE2d 884), are not contrary authority.

Furthermore, even if the admissibility of the evidence was doubtful, it was properly admitted, with its weight left to the determination of the jury. Green v. State, 112 Ga. App. 329 (4) (145 SE2d 80).

It follows that the trial court did not err in admitting the records in evidence and in entering the judgments on the verdicts.

Judgments affirmed.

Bell, C. J., Hall, P. J., Eberhardt, P. J., Deen, Quillian and Clark, JJ., concur. Pannell and Evans, JJ., dissent.

Free access — add to your briefcase to read the full text and ask questions with AI

Stolz, Judge.

1. The laws of the United States made in pursuance of the Constitution of the United States, are, along with the U. S. Constitution and U. S. treaties, the supreme law of this State. U. S. Const., Art. VI, Par. 2 (Code § 1-602); Ga. Const., Art. XII, Sec. I, Par. I (Code Ann. § 2-8001). 28 U. S. C. § 1733 provides: "(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept, (b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof.” 44 U. S. C. §2112 (b) provides: "There shall be an official seal for the National Archives of the United States which shall be judicially noticed. When a copy or reproduction, furnished under this section, is authenticated by the official seal and certified by the Administrator, the copy or reproduction shall be admitted in evidence equally with the original from which it was made.” (Emphasis supplied.)

The subject records were preserved and classified on file at the National Personnel Records Center by the Secretary of the Army, 44 U. S. C. § 3103, and the Administrator of the General Services Administration has legal custody of the records. 41 CFR § 105-60.103. "A deputy officer may properly certify for the chief officer nominally having custo[669]*669dy, and in point of form the name and title of the superior should be used. 5 Wigmore on Evidence (3d Ed.), 520, §1633 (8).” Pressley v. State, 207 Ga. 274, 277 (61 SE2d 113). Hence, the records were in effect properly certified by the Administrator of the General Services Administration by his deputy, the Chief of the Military Reference Branch of the G. S. A., who had actual, as well as legal, custody of the records. This certificate established the elements of authentication—the authority, the incumbency, and the genuineness of the signature of the certifying custodian—as approved for records of the Federal Government. See Mach v. State, 109 Ga. App. 154, 160 (135 SE2d 467).

Such properly authenticated and certified records have been held admissible in evidence in this State under the above authority in the criminal cases of Pressley v. State, supra, and Mach v. State, supra. There is no apparent reason for their not being admissible in civil cases as well, as long as their contents are admissible.

2. The colloquy between the trial court and both counsel with respect to the admission of the records makes clear the court’s intention to omit hearsay and irrelevant matter and to admit the records for the limited purpose of impeachment of the plaintiff’s testimony to the effect that he didn’t have any problems in the army and couldn’t remember going to sick call. Portions of the records deemed to constitute doctors’ conclusions and diagnoses and other than readily observable symptoms, were obliterated from the face of the copies of the records prior to their admission in evidence. However, even if some of the portions admitted contained matter which would be objectionable if the records were tendered as original evidence of the plaintiff’s illnesses, injuries, and symptoms, this did not affect their admissibility for the limited purpose of impeachment. In the absence in the record of the charge of the court and any contention that the jury was not properly charged as to the purpose of such evidence, it is assumed that they were so instructed.

The cases urged by the appellants as authority for the [670]*670contention that the evidence in the present case was inadmissible because of improper authentication and inadmissible matters therein, are distinguishable in that the records there sought to be admitted in evidence were either not properly authenticated or were offered as original evidence, or both. Additionally, some cases rely upon Code Ann. § 38-711 (Ga. L. 1952, p. 177) and related statutes for the admission of business records for the purpose of proof of a fact, whereas in the present case, the government records are admissible under the federal statute for impeachment purposes, if for no other purpose. Hence, such cases as Martin v. Baldwin, 215 Ga. 293 (110 SE2d 344); Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (99 SE2d 370); Cassano v. Pilgreen’s, Inc., 117 Ga. App. 260 (2) (160 SE2d 439); Douglas v. American Cas. Co., 106 Ga. App. 744 (128 SE2d 364); Walburn v. Taunton, 107 Ga. App. 411 (130 SE2d 279); Hirsch’s v. Adams, 117 Ga. App. 847 (162 SE2d 243); and Mabry v. Henley, 123 Ga. App. 561 (181 SE2d 884), are not contrary authority.

Furthermore, even if the admissibility of the evidence was doubtful, it was properly admitted, with its weight left to the determination of the jury. Green v. State, 112 Ga. App. 329 (4) (145 SE2d 80).

It follows that the trial court did not err in admitting the records in evidence and in entering the judgments on the verdicts.

Judgments affirmed.

Bell, C. J., Hall, P. J., Eberhardt, P. J., Deen, Quillian and Clark, JJ., concur. Pannell and Evans, JJ., dissent.

Cite This Page — Counsel Stack

Bluebook (online)

191 S.E.2d 578, 126 Ga. App. 666, 1972 Ga. App. LEXIS 1247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-gangarosa-gactapp-1972.

Opinions

Related

Cite This Page — Counsel Stack