Citizens & Southern Bank v. Swain , 185 Ga. App. 881 ( 1988 )

Sognier, Judge.

Christine H. Swain, individually and as executrix of the estate of Dixon H. Swain, brought a medical malpractice action against the Citizens and Southern Bank of Albany and Myrtis Rhyne (collectively C & S), the joint executors of the estate of Dr. W. P. Rhyne. C & S moved in limine to exclude certain testimony at trial. The trial court denied the motion, but certified its ruling for immediate review, and we granted C & S’s application for interlocutory review.

The record reveals that while being treated for a knee infection in Dr. Rhyne’s office, Dixon H. Swain suffered an anaphylactic reaction to an injection of penicillin, from which he never recovered. There is conflicting evidence in the record, in the form of deposition testimony, as to whether Dr. Rhyne had prior knowledge that Dixon Swain was allergic to penicillin. Dr. Rhyne’s office assistants testified that notations on the record card for Dixon Swain, indicating “allergic to penicillin,” had not been made before Swain’s unfortunate reaction to the injection, although the record card also indicates Swain’s initial visit to Dr. Rhyne took place some three months before. Appellant and her son testified, however, that Dixon Swain told them he had informed Dr. Rhyne of his allergy to penicillin long before the day in question. It is this testimony which appellants claim is inadmissible.

Appellants contend the trial court erred by denying their motion in limine because the testimony sought to be excluded is hearsay, and is not trustworthy. We agree and reverse. While conceding that the testimony is hearsay, appellees argue that it should be admitted because both witnesses to the occurrence are deceased, and thus this hearsay testimony is “necessary,” it being the only evidence of the transaction. Although appellees correctly point out that OCGA § 24-3-1 (b) provides that “[h]earsay evidence is admitted only in specified cases from necessity,” our courts have required that the testimony be trustworthy as well.

“ ‘The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is offered. However, the mere fact that a witness is dead does not render the declarations admissible, although, if in addition to the death of a witness there are circumstances which attribute verity to his declarations, the hearsay rule may be relaxed to permit the admission of such declaration.’ [Cit.]” Irby v. Brooks, 246 Ga. 794, 795-796 (I) (273 SE2d 183) (1980). The Irby court distinguished both Fountain v. Cabe, 242 Ga. 787 (251 SE2d 529) (1979) and Jaakkola v. Doren, 244 Ga. 530 (261 SE2d 701) (1979), relied on by appellee. In Fountain, supra, statements were admitted into evidence which “were made by decedent to numerous persons over an extended period of time.” Irby, supra at 796. In Jaakkola, “[t]he witness testifying to the statements was a neighbor and friend of decedents who had no interest in the outcome of the trial.” Irby, supra at 796. Thus, in both cases, “trustworthiness” was found in the disinterested nature of the propounding witnesses. We find Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 878-879 (2) (285 SE2d 566) (1981) distinguishable as well, in that the hearsay testimony admitted there had been given by the decedent at a deposition, and we found that such testimony, given under oath and recorded, was “trustworthy” enough to satisfy the requirement for admissibility under the “necessity” exception. We find no such guarantee of trustworthiness in the evidence sought to be admitted here. Although the opinion in Belote v. Belote, 167 Ga. App. 8, 10 (5) (306 SE2d 24) (1983) does not disclose the nature of the statements attributed to the dead declarant, they could not have been made prior to the commencement of the controversy (a distinction made by the dissent here), since that controversy was a dispute over proceeds of insurance on the declarant’s life. As such, the statements in Belote were no more “self-serving” when made than the statement in the present case. Yet in Belote this court held that Irby, supra, was entirely applicable and the statements were inadmissible.

It is true, as the dissent points out, that in res gestae situations appellate courts have given deference to a trial court’s rulings on the admissibility of evidence unless clearly erroneous. However, the same leeway has not been adopted in regard to dead declarant situations. Instead, dead declarant situations have been distinguished from those involving statements which are part of the res gestae. See, e.g., Chrysler Motors v. Davis, 226 Ga. 221, 226-7 (173 SE2d 691) (1970). We see no reason to blur the distinction in this case. The statement sought to be admitted here is not only hearsay; it is double hearsay. Appellee offered to testify that her deceased husband told her that he had told the now deceased Dr. Rhyne of his allergy to penicillin. Since both the declarant and the person to whom the statement was allegedly made are both dead and thus unavailable for cross-examination, the statement’s “trustworthiness” necessarily depends on that of its offeror. That is the lesson of Chrysler Motors, Irby, and Belote, supra. Using that as the threshold test, we find that here, as in Irby, supra, the statements of the decedent “were offered by witnesses who stood to gain the most from their admission. We cannot say that these statements meet the test of trustworthiness.” Id. at 796. It should be noted that the issue of whether Dr. Rhyne was or should have been aware of the penicillin allergy will not be kept from the jury when the case is tried. The record reflects other evidence bearing on that question. However, they should not have before them, when they decide this issue, evidence which is inherently untrustworthy. It follows that the trial court erred by denying appellant’s motion in limine.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., and Benham, J., concur. Deen, P. J., Carley, Pope, and Beasley, JJ., dissent.