Waldrup v. Baker

348 S.E.2d 566, 180 Ga. App. 121, 1986 Ga. App. LEXIS 2056

• Court: Court of Appeals of Georgia
• Decided: July 16, 1986
• Docket: 72230
• Status: Published

Opinions

Benham, Judge.

Appellant Waldrup filed suit against appellee Baker to recover damages Waldrup allegedly suffered when her car collided with an automobile driven by Baker. After the jury returned a verdict in favor of Baker, appellant brought this appeal, citing an evidentiary issue as reversible error.

1. At trial appellant testified she was suffering from pain in her neck, shoulders, and mid-back. She admitted that two to three years prior to the collision she had been treated by a chiropractor for muscle tension and that five years before the collision she had been hospitalized due to headaches. She stated that prior to the collision she had not experienced any problem with her neck, back, or any part of her body other than the muscle tension and headaches mentioned earlier. Over appellant’s objection, the trial court admitted two documents, confidential patient histories appellant had completed before beginning treatment by two different chiropractors. In the earlier document, completed twelve days after the collision, appellant sought relief from hip, neck, and shoulder pain, a condition which she stated first appeared in 1979. In the second form, filled out by appellant five and one-half months after the collision, she complained of neck, shoulder, and lower back pain which, she said, had its inception with the collision and which she had not suffered previously.

The first document was admissible to impeach appellant’s testimony that she had suffered only muscle tension and headaches prior to the collision. In addition, both that inconsistent form and the later document which connected her maladies with the collision were admissible as prior out-of-court statements of a witness whose veracity was at issue and who was present at trial, under oath and subject to cross-examination. Edwards v. State, 255 Ga. 149 (2) (335 SE2d 869) (1985); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985); Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982). See also Cooperwood v. Auld, lib Ga. App. 694 (334 SE2d 22) (1985). Even though a witness admits making the prior inconsistent statement, evidence of that statement is admissible because the jury may now consider the inconsistent statement as substantive evidence. Since impeachment is no longer the sole function of the prior inconsistent statement, its admission into evidence is neither cumulative nor unduly prejudicial. Lockhart v. State, 169 Ga. App. 931 (1) (315 SE2d 455) (1984). Similarly, prior consistent statements are now admissible as substantive evidence. Edwards v. State, supra; Cuzzort v. State, supra. In this trial where appellant’s theory of recovery was dependent upon proving the collision with appellee was the proximate cause of her maladies, appellant’s prior statements, both consistent and inconsistent, were substantive evidence and admissible as such.

2. Appellant contends reversible error was committed when the trial court, over appellant’s objection, permitted the two documents at issue to go to the jury room while the jury deliberated.

Under the Supreme Court’s rulings in Gibbons, supra, and Cuzzort, supra, appellant’s prior statements were admissible as substantive evidence. “The proscription on the jury’s possession of ‘written testimony’ does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case. [Cit.]” Munda v. State, 172 Ga. App. 857 (2) (324 SE2d 799) (1984). See also Vinyard v. State, 177 Ga. App. 188 (338 SE2d 766) (1985). Therefore, the trial court did not err in permitting the documents to be taken into the jury room.

Judgment affirmed.

Been, P. J., Birdsong, P. J., Carley and Sognier, JJ., concur. Banke, C. J., McMurray, P. J., Pope and Beasley, JJ., dissent.