Beavers on Behalf of Beavers v. Northrop Worldwide Aircraft Services, Inc.

• Citation: 821 S.W.2d 669
• Decision Date: 13 November 1991
• Docket Number: No. 07-90-0093-CV,07-90-0093-CV
• Parties: Maria BEAVERS, Individually and on Behalf of Minor Children Carey BEAVERS, Jr. and William Beavers, III and by and on Behalf of William Beavers and Mary Beavers, Surviving Parents, Appellants, v. NORTHROP WORLDWIDE AIRCRAFT SERVICES, INC., Appellee.
• Court: Texas Court of Appeals

Page 669

821 S.W.2d 669

Maria BEAVERS, Individually and on Behalf of Minor Children Carey BEAVERS, Jr. and William Beavers, III and by and on Behalf of William Beavers and Mary Beavers, Surviving Parents, Appellants, v. NORTHROP WORLDWIDE AIRCRAFT SERVICES, INC., Appellee.

No. 07-90-0093-CV.

Court of Appeals of Texas Amarillo.

Nov. 13, 1991.

On Rehearing Jan. 9, 1992.

Second Rehearing Overruled Feb. 10, 1992.

Smith, Jarrell & Associates, Ed McConnell, Amarillo, John H. Green, Odessa, Law Offices of C.L. Ray, Charles B. Lord, Byrd, Davis & Eisenberg, James H. Furman, Austin, for appellants.

Cowles & Thompson, R. Brent Cooper, Michael W. Huddleston, Teresa G. Bohne, Dallas, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

BOYD, Justice.

Appellants Maria Beavers, individually and on behalf of her minor children Carey Beavers, Jr. and William Beavers III, and surviving parents William Beavers and Mary Beavers, bring this appeal from a take-nothing judgment in favor of appellee Northrop Worldwide Aircraft Services, Inc. (Northrop). This suit arises from a helicopter crash in which Army Captain Carey Beavers was killed. Northrop had at one time been the civilian company responsible for the maintenance of the helicopter. Captain Beavers was the husband of Maria Beavers, the father of the two minor children, and the son of William and Mary Beavers. The basis of appellants' suit was that Northrop had negligently maintained the helicopter which crashed, resulting in Captain Beavers' death. We affirm the judgment of the trial court.

In pursuit of their appeal, appellants raise nine points of error. In points (1) through (3), they assert the trial court erred in failing to strike two jurors who were disqualified for cause. In the remainder of their points, they argue the trial court (4) violated Texas Rule of Civil Evidence 803(8)(C) by admitting untrustworthy portions and unsubstantiated conclusions in U.S. Army reports; erred in (5) admitting evidence of subsequent remedial measures in violation of Texas Rule of Civil Evidence 407(a); (6) admitting evidence of other incidents or accidents without any predicate showing of similarity; (7) failing to grant a new trial because the jury's verdict is against the great weight and preponderance of the evidence; (8) allowing a jury argument delivered by Northrop's counsel which was grossly improper, inflammatory, and unduly prejudicial; and (9) refusing to grant a new trial based upon Northrop's jury argument concerning the real world and the lawsuit world.

Reiterated, in their first three points of error, appellants assert that the trial court erred in failing to strike two jurors who were disqualified for cause. However, appellants did not notify the trial court about the objectionable jurors until after they had exercised their peremptory strikes. The seminal case in this area is Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888, 890 (Tex.1985). The teaching of that case is, in order to preserve error in such a situation, a party must advise the trial court of two things prior to exercising his peremptory jury challenges: first, that he will exhaust his peremptory challenges, and second, that after exercising his peremptory challenges, specific objectionable jurors would remain on the jury list. The court specifically cautioned that "[a] complaining party waives any error by not timely bringing such error to the attention of the trial court prior to making his peremptory challenges." Id.

Hallett does not require a party to inform the court which jurors the party will peremptorily strike. It does require, however, that the trial court be told specifically which objectionable jurors will remain after those strikes are made and requires that notification be made prior to the actual exercise of those strikes.

In Carpenter v. Wyatt Construction Co., 501 S.W.2d 748, 751 (Tex.Civ.App.--Houston [14th Dist.] 1973, writ ref'd n.r.e.), the court aptly stated the rationale for the rule as follows:

Appellants insist that to require them to make known the objectionable juror before the exercise of peremptory strikes is to give an unfair advantage to the other side "of being able to weigh possible error against the desirability of changing its peremptory challenges." We can not accept this argument. Appellants have no vested interest in error. A party would only be required to make known the objectionable juror that he is being forced to accept by reason of the failure of the court to sustain his challenge for cause. If the other side elects to strike this objectionable juror he should have no standing to complain. If the rule were otherwise, it is likely that advocates would always point out one of the twelve on the jury as being "objectionable."

Id. at 751. Since appellants failed to take the requisite steps to preserve error prior to their exercise of peremptory strikes, the first three points present nothing for our review and are overruled.

In their fourth point of error, appellants assert that the trial court erred in admitting untrustworthy portions of an Army report. Texas Rule of Civil Evidence 803(8) creates a hearsay exception for public records and reports. However, the exception does apply "unless the sources of information or other circumstances indicate lack of trustworthiness." Tex.R.Civ.Evid. 803(8). Appellants specifically urge that the portions of the Army report containing preliminary opinions and conclusions were untrustworthy and do not fit into the exception.

Initially, we note that Northrop alleges that appellants waived this error because they failed to get a ruling on an objection made by them at an evidentiary hearing prior to voir dire on a motion in limine, and that appellants failed to object at that time to the court's failure to rule. However, a proper objection made at the time evidence is offered is sufficient to preserve an asserted error in the admission of the evidence, and a motion in limine is not a necessary predicate for complaint. Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366, 367-68 (1962). Thus, the failure to obtain a ruling or object to the court's failure to rule on appellants' motion in limine did not waive any error in the admission of the evidence, if a proper objection was made when it was tendered into evidence.

However, Northrop also contends appellants failed to timely object and thereby waived error. While an expert witness, Dr. Paul F. Packman, earlier testified that he used parts of the Army report in formulating his opinion, it was only after Northrop then offered the report into evidence that appellants objected. We do not find that objection untimely. While it is true that appellants did not object to Dr. Packman's testimony that he relied upon parts of the report in making his conclusions, that testimony is not the object of appellants' complaint here. Rather, they complain of portions of the report itself being received in evidence. Packman's testimony that he relied upon the report presents a different question from that presented by the receipt of the contents of the report into evidence.

The testimony of an expert may be admissible while at the same time the facts or data underlying that testimony may be inadmissible. Tex.R.Civ.Evid. 703; Welder v. Welder, 794 S.W.2d 420, 430 (Tex.App.--Corpus Christi 1990, no writ). Texas Rule of Civil Evidence 705 states that an expert may disclose the facts or data underlying his opinion. However, the use of the permissive word "may" does not indicate an absolute right of the expert to disclose all of the facts and underlying data under all circumstances. The better judicial position is not to allow the affirmative admission of otherwise inadmissible matters merely because such matters happen to be underlying data upon which an expert relies. First Southwest Lloyds Ins. v. MacDowell, 769 S.W.2d 954, 957-58 (Tex.App.--Texarkana 1989, writ denied). That being so, the challenged portions were not automatically admissible because of Dr. Packman's testimony, and appellants' objection at the time they were actually tendered in evidence was sufficient to preserve the question as to their admissibility unless otherwise waived.

Northrop also suggests that appellants waived any error by their offer of evidence from the report and by offering another copy of the report. However, appellants' tender occurred only after their objection to Northrop's evidence was overruled. After their objection was overruled, appellants were not required to sit by and take their chances on appeal if incompetent evidence was admitted, but were entitled to explain, rebut, or demonstrate the untruthfulness of the evidence without waiving their objection. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4 (Tex.1986). We find no waiver of appellants' right to raise the question presented by this point of error.

As we noted above, appellants base their challenge on the basis that the portions in question lack the trustworthiness required under Texas Rule of Civil Evidence 803(8). It is true that in matters of state law, state courts are not bound by decisions of federal courts of appeals. Wichita Royalty Co. v. City Nat. Bank, 306 U.S. 103, 109, 59 S.Ct. 420, 83 L.Ed. 515, 519 (1939); Hayes v. Pin Oak Petroleum, Inc., 798 S.W.2d 668, 672 n. 5 (Tex.App.--Austin 1990, writ denied); Barstow v. State, 742 S.W.2d 495, 500-01 (Tex.App.--Austin 1987, writ denied).

Federal Rule of Evidence 803(8) is identical to Texas Rule of Civil Evidence 803(8) with the exception that the "lack of trustworthiness" proviso in the Texas rule is applicable to all three subdivisions rather than just to subdivision C as in the federal rule. That being so, and since the federal rules of evidence are the precursors of our rules of civil evidence, in areas such as this one, where there is a paucity of state authority, the federal cases interpreting the federal rule are very persuasive in our...