Mutual Life Insurance v. Davis , 48 Ga. App. 742 ( 1934 )

Broyles, C. J.,

dissenting. In my opinion the obviously hearsay evidence of Dr. Griffin as to the statement of the insured that he was shaken up in a Ford car was inadmissible, and, under all the facts of the case, its admission was prejudicial to the defendant and should require another hearing of the case. See, in this connection, East Tenn., Va. & Ga. R. Co. v. Maloy, 77 Ga. 237 (2) (supra); Boston & Albany R. Co. v. O’Reilly, 158 U. S. 334, 337 (15 Sup. Ct. 830, 39 L. ed. 1006). It is true that there are some eases in other jurisdictions where contrary rulings have been made, but those rulings are not in accord with the decisions of the Supreme Court of this State, the Supreme Court of the Dnited States, and the courts of last resort of many of our sister States. Furthermore, I do not think that the error in admitting the evidence of Dr. Griffin was cured by the instruction of the court to the jury that they should consider the evidence only for the purpose of explaining the physician’s conduct in examining the insured and advising and performing an operation upon him, since, under the facts of the case, the evidence was not admissible for any purpose whatsoever. The other evidence as to the alleged wreck and the bodily injury of the insured therein was wholly circumstantial, and did not demand a finding that the insured had sustained a bodily injury in an automobile wreck. It is easily conceivable that the jury, despite the foregoing instructions of the court, in deliberating upon the case, were unable to dismiss the illegal testimony of Dr. Griffin from their consideration, and that this testimony may have consciously or unconsciously influenced them in reaching their verdict. As stated by Mr. Justiee Shiras, speaking for the Supreme Court in the O’Reilly case, supra (where a physician was permitted, over the objections of the defendant, to testify that the plaintiff, sometime after the accident, made certain statements to him about his injury), “It is impossible to say that the defendant’s case was not injuriously affected by the admission of the evidence, and, while an appellate court will not disturb a judgment for an immaterial error, yet it should appear beyond a doubt that the error complained of did not and could not have prejudiced the rights of the party duly objecting. Deery v. Cray, 5 Wall. 795, 807 [18 L. ed. 653]; Gilmer v. Higley, 110 U. S. 47 [3 Sup. Ct. 471, 28 L. ed. 62].”

If another trial could be had with this illegal and prejudicial evidence eliminated, another jury could more intelligently and fairly pass upon the issues of this case.