Such evidence consisted of hospital records containing the recorded opinions (diagnoses) made by physicians who were not witnesses on the trial of the case, and under the decision of this court in the cases of Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 ( 99 S.E.2d 370) and Meeks v. Lunsford, 106 Ga. App. 154 (1) ( 126 S.E.2d 531), construing the Act of 1952 (Ga. L. 1952, p. 177), such evidence was not admissible. However, in the present case the plaintiff examined a witness on direct examination eliciting certain of the opinions shown in such record and the defendant without objection by the plaintiff, cross examined such witness eliciting other opinions shown by such hospital records. Under the decision in Healan v. Powell, 91 Ga. App. 787 (2) ( 87 S.E.2d 332), and similar cases the admission of such part of the hospital records as had been testified to by such witness was not reversible error; and since all the hospital record (consisting of 31 pages), was not inadmissible under the above cited authority, a part thereof consisting of a record of the treatment given to the insured as well as entries made by the physician who testified on the trial, the overruling of the objection to the whole hospital record was not error. See Clemones v. Alabama Power Co., 107 Ga. App. 489 (5) ( 130 S.E.2d 600); Brantley v. Heller, 101 Ga. App. 16 ( 112 S.E.2d 685), and citations.
In every case we have found holding that a guest passenger had a duty to take some affirmative action such as to warn his host driver of a hazard, it appears from the facts and circumstances that the guest had actual knowledge of the hazard coupled with an opportunity to take appropriate action to avoid injury to himself or to warn the host driver of the hazard. See Mishoe v. Davis, 64 Ga. App. 700 ( 14 S.E.2d 187); Healan v. Powell, 91 Ga. App. 787 (3) ( 87 S.E.2d 332); Smith v. Harrison, 92 Ga. App. 576 (4), supra; Bentley v. Buice, 102 Ga. App. 101 ( 115 S.E.2d 706); Bellamy v. Georgia Power Co., 67 Ga. App. 569 ( 21 S.E.2d 294); Wade v. Drinkard, 76 Ga. App. 159 ( 45 S.E.2d 231). As stated in Russell v. Bayne, 45 Ga. App. 55, 56 ( 163 S.E. 290): "A person riding as a guest may, until he has notice to the contrary, assume that neither the driver nor others upon the highway will be negligent, and may also assume that the driver will exercise the proper care to avoid the negligence of others; but while the negligence of the host is not imputable to the guest, the guest can not close his eyes to known or obvious dangers arising either from the acts of the driver or from the acts of others, and if there is a danger from either cause, and the circumstances are such that it would become apparent to a person of ordinary prudence in like circumstances, then it is the duty of the guest to do whatever in the opinion of jury a person of
That being so, the charges complained of by appellant were not authorized by the evidence and giving them to the jury was error. Healan v. Powell, 91 Ga. App. 787 ( 87 S.E.2d 332) (1955). Given the potential those charges had for confusing the jury, we cannot say the error was harmless.
This evidence was not objected to by defendant in the trial of the case, and in my opinion such evidence having been admitted without objection, defendant has waived his right to complain about the admission of similar evidence, i.e. the pinching on the rear (Simple Battery, Code Ann. § 26-1304) and the trashy book delivered to another married woman. (Obscene materials, Code Ann. § 26-2101 (1976); Smith v. State, 210 Ga. 713 (4) ( 82 S.E.2d 507) (1954); Pound v. Smith, 101 Ga. App. 500 (1) ( 114 S.E.2d 280); Wainwright v. Conger, 113 Ga. App. 27 (2) ( 147 S.E.2d 28); Healan v. Powell, 91 Ga. App. 787, 790 (2) ( 87 S.E.2d 332)). Additionally, he being 35 years of age, married and living with another woman, against the victim baby sitter's being 15 years of age, when coupled with the last mentioned acts, illustrated his "bent of mind," for the purposes of proof in his case.
The improper admission of evidence is not ground for reversal where the same evidence is subsequently admitted without objection. Rogers v. Manning, 200 Ga. 844 (1) ( 38 S.E.2d 724); Sapp v. Callaway, 208 Ga. 805 (3) ( 69 S.E.2d 734); Healan v. Powell, 91 Ga. App. 787 (2) ( 87 S.E.2d 332). Special ground 7 complains that the court erred in admitting over objection, a letter dated June 5, 1952, written by Eunice Thompson in Cleveland, Ohio, addressed to her brother, James Lindsey Thompson, in Doerun, Georgia, in which she transmitted the purported deed made by her father to the children.
Cf. National Trailer Convoy, Inc. v. Sutton, 136 Ga. App. 760 (3) ( 222 S.E.2d 98). As evidence to the same effect was admitted, plaintiff does not have grounds to object to the witness' reference to the plaintiff's medical diagnosis. Healan v. Powell, 91 Ga. App. 787 (2) ( 87 S.E.2d 332). See also Dual S. Enterprises v. Webb, 138 Ga. App. 810 (4) ( 227 S.E.2d 418).
, 156 ( 156 S.E.2d 388). 2. (a) In Count 2 the theory of the action is that of negligent entrustment, as to which see generally, Willis v. Hill, 116 Ga. App. 848 ( 159 S.E.2d 145), and citations (reversed on other grounds in 224 Ga. 263 ( 161 S.E.2d 281)); Young v. Kickliter, 213 Ga. 42 ( 96 S.E.2d 605); Chattanooga Publishing Co. v. Fulton, 215 Ga. 880 ( 114 S.E.2d 138); NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 ( 171 S.E. 151); Ficklen v. Heichelheim, 49 Ga. App. 777 (6) ( 176 S.E. 540); Crisp v. Wright, 56 Ga. App. 338 ( 192 S.E. 390); Graham v. Cleveland, 58 Ga. App. 810 (2) ( 200 S.E. 184); Holt v. Eastern Motor Co., 65 Ga. App. 502 ( 15 S.E.2d 895); Burks v. Green, 85 Ga. App. 327 ( 69 S.E.2d 686); Gay v. Healan, 88 Ga. App. 533 (4) ( 77 S.E.2d 47); Windsor v.Chanticleer Co., 89 Ga. App. 116 ( 78 S.E.2d 871); Caskey v. Underwood, 89 Ga. App. 418 ( 79 S.E.2d 558); Medlock v. Barfield, 90 Ga. App. 759 ( 84 S.E.2d 113); Garver v. Smith, 90 Ga. App. 892, 896 ( 84 S.E.2d 693); Healan v. Powell, 91 Ga. App. 787 ( 87 S.E.2d 332); Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734); Jones v. Dixie Drive It Yourself System, 97 Ga. App. 669 ( 104 S.E.2d 497); Hines v. Bell, 104 Ga. App. 76 (4) ( 120 S.E.2d 892); Marques v. Ross, 105 Ga. App. 133, 138 ( 123 S.E.2d 412); McKinney v. Burke, 108 Ga. App. 501 ( 133 S.E.2d 383); Roebuck v. Payne, 109 Ga. App. 525 (2) ( 136 S.E.2d 399); Lee v. Swann, 111 Ga. App. 88 ( 140 S.E.2d 562); Porch v. Wright, 116 Ga. App. 138 ( 156 S.E.2d 532); Saunders v. Vikers, 116 Ga. App. 733 (5, 6, 7) ( 158 S.E.2d 324); Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, 520 ( 160 S.E.2d 844); Jones v. Cloud, 119 Ga. App. 697 ( 168 S.E.2d 598); and see R. J. Reynolds Tobacco Co. v. Newby, 145 F.2d 768. Defendant testified that Tuggle had been driving tractors for some time and had driven this tractor on numerous occasions in doing plowing, harrowing, etc., on the farm, and had driven it to town on one occasion to get repairs made, had occasionally driven it to the sto
If, as is urged, Henderson was known to the owner to be an habitual user of intoxicants to excess, and it should have been anticipated that he would take the pickup truck on an unauthorized personal mission for engaging in a drinking bout, as he did, plaintiffs are not left without remedy by following the rule of Hodges. Certainly they may proceed with their suits against Henderson. And it may well be that they can proceed against the owner under the long recognized theory of negligent entrustment. See, for example, NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 ( 171 S.E. 151); Crisp v. Wright, 56 Ga. App. 338 ( 192 S.E. 390); Burks v. Green, 85 Ga. App. 327 ( 69 S.E.2d 686); Windsor v. Chanticleer Co., 89 Ga. App. 116, supra; Medlock v. Barfield, 90 Ga. App. 759 ( 84 S.E.2d 113); Healan v. Powell, 91 Ga. App. 787 ( 87 S.E.2d 332); Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734); Jones v. Dixie Drive It Yourself System, 97 Ga. App. 669 ( 104 S.E.2d 497); Hines v. Bell, 104 Ga. App. 76 ( 120 S.E.2d 892); McKinney v. Burke, 108 Ga. App. 501 ( 133 S.E.2d 383). But see Saunders v. Vikers, 116 Ga. App. 733 (5, 6, 7) ( 158 S.E.2d 324). Since the owner was not a party to the suits brought by the Ditmyers that issue is not and cannot be involved and they do not proceed upon that theory against Henderson. The negligent entrustment theory applies only in an action against an owner or one who has negligently placed the vehicle in the hands of an incompetent driver.
It is settled by the decisions of the Supreme Court and of this court that as to Willis, the driver, proof of his prior driving record, or of his general character for carelessness or recklessness in driving, is impermissible. Hines v. Bell, 104 Ga. App. 76 (3a) ( 120 S.E.2d 892); Healan v. Powell, 91 Ga. App. 787, 790 ( 87 S.E.2d 332); Atlanta W. P. R. Co. v. Newton, 85 Ga. 517 ( 11 S.E. 776); Central R. Bkg. Co. v. Kent, 87 Ga. 402 ( 13 S.E. 502); Atlanta W. P. R. Co. v. Smith, 94 Ga. 107 ( 20 S.E. 763); Western A. R. Co. v. Slate, 23 Ga. App. 225 (3) ( 97 S.E. 878); Cox v. Norris, 70 Ga. App. 580 (1) ( 28 S.E.2d 888); Grannemann v. Salley, 95 Ga. App. 778 (1) ( 99 S.E.2d 338); Smith v. Morning News, Inc., 99 Ga. App. 547, 550 (3) ( 109 S.E.2d 639).
The admission of the parts of the report as were testified to by the officer was not reversible error. Healan v. Powell, 91 Ga. App. 787 (2) ( 87 S.E.2d 332). And since some entries on the report, such as data as to time, location, road conditions, vehicles and persons involved, personal injuries, damage to vehicles, etc., were not inadmissible as business entries under Martin v. Baldwin, supra, and similar cases, the overruling of the objection made to the report in its entirety was not error.