Price v. Hitchcock , 174 Ga. App. 606 ( 1985 )

174 Ga. App. 606 (1985) 330 S.E.2d 807

PRICE
v.
HITCHCOCK.

70074.

Court of Appeals of Georgia.

Decided April 18, 1985.

M. Stan Ballew, Craig Alan Webster, for appellant.

Jesse W. Walters, W. Earl McCall, for appellee.

DEEN, Presiding Judge.

Appellant Nona Price brought a malpractice action against appellee Hitchcock, a chiropractor, alleging that she had sustained disabling injuries as the result of treatment which deviated from the standard of care exercised by chiropractors generally. The trial court denied plaintiff's motion for a directed verdict, and a jury found for defendant. Mrs. Price appeals, enumerating as error the court's denial of her motion for a directed verdict and the admission into evidence of a letter written by a physician who was not available for cross-examination. Held:

1. Careful scrutiny of the record in the instant case, including the depositions and the transcript of the four-day-long jury trial, reveals no reversible error on the part of the trial court. By no means can plaintiff's evidence be construed as demanding a verdict in her favor. Plaintiff's case therefore does not fulfill the mandate of OCGA § 9-11-50 (a): "If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed." (Emphasis supplied.) This enumeration is without merit.

2. We also find meritless appellant's second enumeration of error. The transcript clearly indicates that the allegedly inadmissible letter was admitted for the purpose of impeachment only, and that the jury was so instructed. "As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made." Green, Ga. Law of Evid., 2d ed., § 218 (Harrison 1982), quoted in A Child's World v. Lane, 171 Ga. App. 438, 439 (319 SE2d 898) (1984). Moreover, as the transcript further reveals, it was at the instance of counsel for the plaintiff — not defense counsel — that the actual contents of the letter were read in the hearing of the jury and admitted into evidence. It is well settled that when a party has himself induced what he subsequently assigns as error, he will not be heard to complain of it on appeal. Burrell v. State, 171 Ga. App. 648, 649 (320 SE2d 810) (1984).

Finding no error of law, we must affirm the judgment below.

Judgment affirmed. Pope and Beasley, JJ., concur.