Blount v. Bordens, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: ANDELL
• Citation: Blount v. Bordens, Inc., 892 S.W.2d 932 (Tex. App. 1994)
• Decision Date: 03 November 1994
• Docket Number: No. 01-93-00271-CV,01-93-00271-CV
• Parties: James Raymond BLOUNT, Sr., Individually and on Behalf of the Estate Of James Raymond BLOUNT, Jr., and Lisa McCown, As Next Friend to Samantha McCown, Appellants, v. BORDENS, INC., Kenneth Fred Vessey, and W.C. Martin, Appellees. (1st Dist.)

Page 932

892 S.W.2d 932

James Raymond BLOUNT, Sr., Individually and on Behalf of the Estate Of James Raymond BLOUNT, Jr., and Lisa McCown, As Next Friend to Samantha McCown, Appellants, v. BORDENS, INC., Kenneth Fred Vessey, and W.C. Martin, Appellees.

No. 01-93-00271-CV.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 3, 1994.

Rehearing Overruled March 2, 1995.

Jake Johnson, Valorie W. Davenport, Houston, for appellants.

Richard J. Jauma, David J. Sacks, Steven C. Howard, Houston, for appellees.

Before ANDELL, COHEN and WILSON, JJ.

OPINION

ANDELL, Justice.

The appellants, plaintiffs below, seek the reversal of a take-nothing judgment rendered in a case arising from a fatal truck collision. We affirm.

The Facts

On May 24, 1986, Fredrick Mark Martin (Martin) and James Raymond Blount, Jr. (Blount, Jr.) were the occupants of a pickup truck driving through Burnet County, Texas, on a state highway. The issue of who was driving the pickup is disputed, but there is evidence in the record that Martin was the driver. The pickup was pulling a horse trailer containing two racehorses. The boys had picked up the horses in New Mexico and were in the process of delivering them to Martin's father, W.C. Martin (W.C.), in Harris County. Although the issue of compensation is also disputed, there is evidence that the boys were going to be paid for the job.

Outside Marble Falls, the pickup collided head-on with a Bordens milk truck driven by Kenneth Fred Vessey (Vessey). Vessey was making deliveries at the time.

Immediately after the initial impact between the two trucks, the horse trailer rammed into the back of the pickup, rupturing its gas tank. The pickup and horse trailer caught fire. Martin, Blount, Jr., and the two horses were killed. The bodies of the two boys were burned beyond recognition. There is evidence in the record that, at the time of the accident, Martin had a blood alcohol level of .11 percent and Blount, Jr. had a blood alcohol level of .01 percent.

James Raymond Blount, Sr. (Blount, Sr.), individually and on behalf of Blount, Jr.'s estate, sued Bordens and Vessey. Bordens and Vessey filed a third-party action and cross-claim against W.C., individually and as surviving representative of Martin.

Lisa McCown (Lisa), as next friend to Samantha McCown (Samantha), joined the lawsuit as a plaintiff. Evidence demonstrated that Samantha is the daughter of Blount, Jr. and Lisa.

Trial was to a jury. The jury attributed negligence as follows:

Bordens 10%

Vessey 5%

Martin 80%

Blount, Jr. 5%

The jury made the following awards:

Blount, Jr. $5,500 (for pain, mental anguish, and funeral and burial expenses)

Blount, Sr. $75,000 (for past and future pecuniary loss, loss of companionship and society, and mental anguish)

Samantha $50,000 (for past and future pecuniary loss, loss of companionship and society, and mental anguish)

However, because the jury found that Martin and Blount, Jr. were engaged in a joint enterprise at the time of the accident, the percentage of negligence attributed to Martin was imputed to Blount, Jr. Because this elevated the negligence of Blount, Jr. to over 50 percent, all claims on his behalf, and all derivative claims, were barred. The trial court therefore entered a take-nothing judgment against Blount, Sr. and Lisa. ¹

Lisa's Points of Error One through Four: Evidence of Joint

Enterprise

A. Did the trial court err in admitting evidence that Blount, Jr. would "be able" to make a car insurance payment upon his return from the trip?

In her first point of error, Lisa contends that the trial court erred in admitting evidence that Blount, Jr. would "be able" to pay his car insurance bill when he returned from the trip.

The defendants contended, and, as noted above, the jury found, that Martin and Blount, Jr. were engaged in a joint enterprise at the time of the accident. It was the defendants' burden to offer probative evidence in support of their contention. See Rhea v. Williams, 802 S.W.2d 118, 121 (Tex.App.--Fort Worth 1991, writ denied).

One of the elements of a joint enterprise is a "community of pecuniary interest" among the members of the group, i.e., that the participants in the alleged joint enterprise have some financial stake in their endeavor. Rhea, 802 S.W.2d at 121 (quoting Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 16-17 (Tex.1974), which quotes RESTATEMENT (SECOND) OF TORTS § 491 cmt. c (1965)). The defendants offered the following testimony as evidence of a pecuniary interest in the trip:

Q. (By counsel for Bordens and Vessey): The trip that [Blount, Jr.] was going on with Mark Martin, as I understand it, was to go get some racehorses and bring them back to town. Is that right?

A. (By Blount, Sr.): That's--excuse me. That's what I understood.

Q. Did [Blount, Jr.] give you the indication that when he would be back, that he would be able to pay some bills?

Counsel for Lisa: Objection, Your Honor. Hearsay.

The court: Overruled.

Q. [D]id he give you that indication?

....

A. [H]e did have an insurance payment that was coming up on his car, and I was concerned about him being able to make that payment. And he told me, he said, "Daddy, I'll be able to take care of that when I get back."

(Emphasis added.) The appellees argue, and argued at trial, that this testimony indicates Blount, Jr. had a financial stake in the trip, because the fact that he would "be able" to pay his car insurance bill after his return from the trip is some evidence that he was to be paid for his role in transporting the horses.

Lisa attacks the admission of this testimony as hearsay. ² The appellees argue that the testimony was properly admitted as a hearsay exception under TEX.R.CIV.EVID. 803(3). They contend that the testimony shows Blount, Jr.'s intent to pay his car insurance bill specifically upon his return from the trip, and that rule 803(3) allows the admission of such testimony. We agree.

Rule 803(3) allows the admission of the following:

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

TEX.R.CIV.EVID. 803(3). There are few Texas cases construing this rule, and none relevant to the issue of whether Blount, Jr.'s intent to pay his car insurance bill upon returning from the trip is admissible. However, a review of pertinent cases from other jurisdictions with an identical rule weighs in favor of admissibility. Courts have favored the admission of statements that show the declarant's then-existing intent to perform an act in the future.

Texas' rule 803(3) is identical to the federal rule that addresses the same subject. Compare TEX.R.CIV.EVID. 803(3) with FED.R.EVID. 803(3). It is also identical to the Nebraska and South Dakota rules. Compare TEX.R.CIV.EVID. 803(3) with NEB.REV.STAT. § 27-803(2) (1989) and S.D.CODIFIED LAWS ANN. § 19-16-7 (1987).

In Barnes v. Milligan, 200 Neb. 450, 264 N.W.2d 186 (1978), the Supreme Court of Nebraska considered an action for trespass brought by a ranchowner against an adjoining ranchowner. 264 N.W.2d at 188. The adjoining ranchowner counterclaimed, asserting adverse possession of the disputed land. Id.

The trial court admitted evidence that showed that one of the adjoining ranchowner's predecessors in possession had not possessed the land in a hostile manner. 264 N.W.2d at 191. The evidence, a statement made by the predecessor, showed that the predecessor had "inten[ded] to pay rent" to the ranchowner. Id. at 191, 192. Citing Nebraska's equivalent of TEX.R.CIV.EVID. 803(3), the court held that the predecessor's "intention to pay rent" was admissible as an exception to the hearsay rule. Id. at 192.

The same court considered a similar scenario in Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922 (1977). In Fite, the plaintiff appealed from a workmen's compensation court's decision. 258 N.W.2d at 923. The workmen's compensation court "held that plaintiff had failed to maintain the burden of proving ... that her deceased husband ... was in the course of employment at the time of his death...." Id.

On appeal, the plaintiff argued that the compensation court erred when it "refus[ed] to admit into evidence certain statements of the decedent concerning his purpose or intent" that were relevant to the disputed issue of scope of employment. 258 N.W.2d at 923. ³ The Supreme Court of Nebraska noted that the excluded statements "evidenced a present intention to do a future act, and that act was to go to work." Id. at 925. The court held that, under Nebraska's counterpart to rule 803(3), "statements evidencing an intent, design, or plan to do some specific act in the future are admissible." Id. The court reversed and remanded the case to the compensation court. Id. at 926.

Federal courts are in accord. In Driscoll v. United States, 456 F.Supp. 143 (D.Del.1978), aff'd without op., 605 F.2d 1195 (3d Cir.1979), a widow sued the United States under the Federal Tort Claims Act to recover damages following the death of her husband in an airplane crash. 456 F.Supp. at 145. The plaintiff called a family friend as a witness at trial, and the friend testified that the plaintiff, prior to her husband's death, had planned to have a second child. Id. at 147. The defendant moved to strike the testimony. Id. The court denied the defendant's motion, writing that "this testimony was offered to establish [the plaintiff's] then-present state of mind, i.e., her plans," and citing FED.R.EVID. 803(3). Id.

The Ninth Circuit Court of Appeals considered the issue in United States v. Silverman, 861 F.2d 571 (9th Cir.1988), a criminal case. The defendant was convicted of, among other things, conspiracy to distribute a controlled substance. Id. at 572. The...