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Bischoff v. Payne9/7/1999
earlier suit if she denied having filed a complaint alleging such damages. Upon being questioned in the presence of the jury, Bischoff testified that the complaint sought damages for mental suffering only. Payne then introduced the prior complaint in evidence and informed the jury of its allegations. Bischoff asserted that the complaint was dismissed because her injuries were "mainly mental." Following an unreported bench conference, Payne elicited testimony from Bischoff showing that the case was settled for $5,000.
Bischoff argues that she was not subject to impeachment based on the allegations of the complaint, because such allegations were drawn by her attorney and are not evidence. It has been held that allegations in pleadings in other cases which are contradictory to a party's trial testimony may be introduced in evidence for purposes of impeachment. Krasner v. Lester, 130 Ga. App. 234, 235 (1) (202 SE2d 693) (1973). Therefore, there is no merit in the above argument.
Nor is there any merit in Bischoff's argument that her settlement of the prior lawsuit was inadmissible. As authority, Bischoff relies on Allison v. Patel, 211 Ga. App. 376, 382 (1) (438 SE2d 920) (1993). Allison holds that the fact that plaintiff settled with co-defendant tortfeasors is not relevant as to either defendant's negligence or the amount of plaintiff's damages. In this case there were no co-defendant tortfeasors. Payne was merely allowed to show that Bischoff had settled a lawsuit arising from an earlier accident in order to impeach Bischoff's testimony that the complaint had been dismissed. "A witness may be impeached by disproving the facts testified to by ." OCGA ยง 24-9-82.
3. Bischoff complains of improper comments by Payne in closing argument.
During closing argument, Payne's attorney alluded to a July 1991 slip-and-fall by Bischoff at a restaurant. Bischoff objected on the ground that there was no evidence of such a fall. The court then instructed the jury that the statement by counsel was not evidence and should not be considered. Without any additional objection by Bischoff, Payne's attorney was allowed to proceed. We find no error by the trial court.
4. The remaining issues raised by Bischoff in this appeal relate to instances where evidence was admitted without objection. Consequently, these issues have not been preserved for appellate review.
Judgment affirmed. Smith and Eldridge, JJ., concur.
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