Academy Welding v. Carnes, 1041

• Decision Date: 08 April 1976
• Docket Number: No. 1041,1041
• Citation: 535 S.W.2d 917
• Court: Texas Court of Appeals
• Parties: ACADEMY WELDING, Appellant, v. Roy W. CARNES, Appellee.

Page 917

535 S.W.2d 917

ACADEMY WELDING, Appellant, v. Roy W. CARNES, Appellee.

No. 1041.

Court of Civil Appeals of Texas Corpus Christi.

April 8, 1976.

Zollie Carl Steakley, Bowmer, Courtney, Burleson & Pemberton, Temple, for appellant.

Daniel M. Francis, F. Ben Selman, Jr., Jones, Francis & Youts, Inc., Waco, for appellee.

OPINION

YOUNG, Justice.

This is a venue case. Roy W. Carnes sued City Utilities Company and the City of Gonzales, Texas, for damages from personal injuries sustained on July 27, 1973. He alleged that while he was working on electrical cables in place on utility poles, he contacted power lines left on the poles in a negligent manner by the defendants; that the defendants' negligence caused his injuries. Thereafter, in his first amended original petition, the plaintiff named Halline Utility Equipment Company and Academy Welding as additional defendants.

Then Academy Welding filed a plea of privilege seeking transfer of the case to Bell County, its county of residence. The plaintiff, in his controverting affidavit, invoked the exceptions of Subdivisions 4 and 29a of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964). The only evidence at the hearing, August 21, 1975, came from a deposition of the plaintiff and a deposition of a hospital records custodian. The trial court overruled the defendant Academy's plea and that defendant appeals.

The appellant attacks the trial court's order overruling the plea of privilege in ten points of error. The first and second points deal with the trial court's overruling of the appellant's objection to the introduction of the appellant's deposition into evidence at the plea of privilege hearing. The remaining points relate to the sufficiency of the evidence there produced.

We will discuss the deposition problem first. In that regard, the essential facts are these:

1. Appellee filed this suit July 29, 1974, naming only the City of Gonzales and the City Utilities Company as defendants.

2. The deposition of appellee Carnes was taken January 9, 1975; certified March 5, 1975; and filed of record March 14, 1975.

3. The appellant, in an amended petition, was first named as a defendant June 3, 1975; was served June 6, 1975; and answered by plea of privilege June 25, 1975.

4. The plea of privilege hearing was begun and completed August 21, 1975, and the order overruling the plea was signed and entered August 28, 1975.

From the foregoing it is clear that the deposition evidence which was admitted was taken before appellant was made a party to this suit and without notice to the appellant. This was pointed out to the trial court in the appellant's objection which was overruled.

The general rule is that depositions are inadmissible in evidence against one not a party to the suit at the time the deposition was taken. Dalsheimer v. Morris, 8 Tex.Civ.App. 268, 28 S.W. 240 (1894, no writ); Allen v. Payne, 334 S.W.2d 607 (Tex.Civ.App.--Texarkana 1960, writ ref'd n.r.e.). This rule also applies in venue cases. Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App.--Corpus Christi 1971, no writ).

Appellee recognizes this general rule, but he contends the appellant has waived the right to complain of the trial court's action in admitting into evidence appellee's deposition. This contention is based upon the tender by appellee's attorney of the deponent for cross-examination and his offer not to resist a continuance, if requested, by the appellant. The tender was obviously for sometime later because the record does not reflect that Mr. Carnes, the deponent, was even present at the plea of privilege hearing. After that tender and offer, the trial judge indicated that he would grant a continuance to the appellant if the appellant were going to take the deposition of Carnes in the 'immediate future'. The appellant's attorney neither specifically declined nor accepted the tender and offers, but apparently elected to stand on his objection. Even so, the appellee proceeded with the introduction of the questioned deposition evidence.

This brings us back to other appropriate general rules. The courts in Texas have consistently held that a person's right to be sued in the county of his residence is a valuable right and should never be denied except upon clear and convincing proof that the alleged cause of action comes within an exception to the venue statute. City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466 (1943); Stanley v. Savage, 489 S.W.2d 461 (Tex.Civ.App.--Corpus Christi 1972, no writ). The plaintiff has the burden to allege and prove the facts he relies upon to bring his case within an exception to the general rule. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945); Stanley v. Savage, supra; Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App.--Corpus Christi 1974, no writ).

Because the burden was on appellee to prove the necessary facts to sustain a venue exception, the burden was upon him to attempt to do so by admissible evidence. His attorney could have obviated the objection to the deposition by putting the appellee on the witness stand at the plea of privilege hearing and there could have elicited his testimony about the venue facts of this case. In that instance opportunity for cross-examination would have been afforded the appellant without the necessity of a continuance. And if plaintiff Carnes was not available to take the stand, the burden was on the appellee to request a continuance, not the appellant, for the purpose of later tendering Carnes for examination by the appellant.

Appellee further argues that the deposition was on file several months after the appellant was made a party to this suit and before the plea of privilege hearing; that appellant, therefore, had ample time to take the deposition of Carnes. The answer to that contention is that if the appellee desired to introduce at a hearing or trial admissible evidence by deposition against the appellant, then the burden was on the appellee, after the appellant was joined as a defendant, to retake the deposition in compliance with Rules 186 through 215c, T.R.C.P. We are not here holding that the right of cross-examination of a deponent can never be waived by a party joined in a suit after the deposition has been taken. We are holding that under the facts of this case the right has not been waived. Appellant's first and second points are sustained.

Because we have held that the deposition of appellee Carnes was inadmissible as evidence at the plea of privilege hearing and because that was the only evidence tendered on the issue of liability, there is no evidence for us to review regarding appellant's remaining points. Therefore appellant's points three through ten are all sustained.

The judgment of the trial court is reversed and judgment here rendered that this case, as to Academy Welding only, be transferred to one of the district courts of Bell County, Texas.

NYE, Chief Justice (dissenting).

I respectfully dissent. This case presents the very narrow question as to whether the appellant waived his right to cross-examine a deposition witness.

This Court, in Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App.--Corpus Christi 1971, no writ), held that as a general rule, deposition evidence is inadmissible in evidence against one not a party to the suit at the time the deposition was taken. While I still agree with such general rule, I believe that such a rule is not absolute and not without exceptions. The Heldt Bros. case is not in point. The rationale behind the general rule is based on the supposition that the adverse party (here Academy Welding) must be afforded an opportunity to cross-examine the deposed witness and absence such an opportunity such evidence does not constitute legally admissible evidence or proof of any fact against such party. See Heldt Bros. Trucks v. Silva, supra; 20 Tex.Jur.2d, Depositions, § 72, p. 27. See also Dalsheimer v. Morris, 28 S.W. 240 (Tex.Civ.App.--1894, no writ); St. Louis Southwestern Ry. Co. of Texas v. Woldert Grocery Co., 144 S.W. 1194 (Tex.Civ.App.--Texarkana 1912, no writ); Allen v. Payne, 334 S.W.2d 607 (Tex.Civ.App.--Texarkana 1960, writ ref'd n.r.e.).

In each of the above cases cited by the majority, the offending characteristic of the questioned evidence was the absence of an Opportunity to cross-examine the witness. As we stated in the Heldt case:

'The right to cross-examination of witnesses by a party in a lawsuit is a valuable and substantial right, and it cannot be denied in the instant case but that the circumstances have, in effect, denied that right to appellants in respect to a material matter that has vitally affected them. They, through no fault of their own, have not been accorded an opportunity to exercise such right, in accordance with the rules governing cross-examination generally.' (Emphasis supplied.)

It is, therefore, the absence of the Opportunity to cross-examine which causes such evidence to take on the characteristics of hearsay evidence, which absent some exception, is legally inadmissible. It follows that once such opportunity to exercise such right of cross-examination is afforded the complaining party, irregardless of whether the opportunity is exercised, the reasons for excluding such evidence are no longer present. The right to cross-examine any witness may be waived.

The principle, which is usually recognized by modern jurisdictions, does not necessarily require that there be an actual cross-examination, but only that the adverse party have an opportunity to exercise such right. This, of course, must be in accordance with the rules governing the right of cross-examination generally. 4 A.L.R.3d Depositions--Admission in Evidence p. 1079.

The record before us shows that Carnes' deposition was taken on January 9, 1975, and filed of record on March 14, 1975. Academy Welding was named...