Brown Express v. Henderson, 10728.

• Decision Date: 12 June 1940
• Docket Number: No. 10728.,10728.
• Parties: BROWN EXPRESS, Inc., v. HENDERSON.
• Court: Texas Court of Appeals

142 S.W.2d 585

BROWN EXPRESS, Inc., v. HENDERSON.

No. 10728.

Court of Civil Appeals of Texas. San Antonio.

June 12, 1940.

Rehearing Denied August 7, 1940.

Appeal from One Hundred Third District Court, Cameron County; Jas. S. Graham, Judge.

Action by Dewey Henderson against Brown Express, Inc., for injuries sustained in a collision between a truck and an automobile. From a judgment for plaintiff, defendant appeals.

Affirmed.

Abney & Whitelaw and Seabury, Taylor & Wagner, all of Brownsville, for appellant.

Carter & Stiernberg, of Harlingen, for appellee.

MURRAY, Justice.

Appellee, Dewey Henderson, instituted this suit against appellant, Brown Express, Inc., seeking to recover damages resulting from injuries sustained by him when a Chrysler car in which he was riding collided with a truck owned by Brown Express, Inc., and driven by its employee Arlis Cummings. The collision occurred on Highway No. 281, between Brownsville and San Benito, and near a filling station known as the Oklahoma Filling Station.

The cause was submitted to a jury upon a number of special issues and upon their answers judgment was entered in favor of Dewey Henderson and against Brown Express, Inc., in the total sum of $19,069.70, from which judgment Brown Express, Inc., has prosecuted this appeal.

Appellant's first complaint is that, over its objection, the witness Arlis Cummings was questioned as to whether or not, subsequent to the collision in which Henderson received his injuries, he had stated to certain named persons that he did not know what happened at the time of the collision, that he, the driver of appellant's truck, had not had dinner on the day of the accident, and that he was conscious in the hospital the first night; and appellant further complains that when Cummings did not admit making these statements, the named witnesses were permitted to testify that he did in fact make such statements.

This testimony was offered for impeachment purposes and for these purposes it was admissible. Appellant contends that the statements were not res gestae. This is probably true, but where a witness has testified in a case and his impeachment is undertaken, by showing that he has made statements out of court which conflict with his testimony, such statement in order to be admissible need not be a res gestae statement. Jones on Evidence, 4th Ed., p. 1562, § 844, etc.

The evidence shows that Dewey Henderson was riding in a car driven by Lois Blocker and going in the direction of Brownsville, on Highway No. 281, when it collided with a truck belonging to Brown Express, Inc., and driven by Arlis Cummings and traveling in the direction of Harlingen. The collision occurred on the left-hand or wrong side of the highway, so far as the truck was concerned. Arlis Cummings, who testified as a witness for appellant, explained his being on the wrong side of the road by stating that just as he was near a large Coca Cola billboard a short distance from the Oklahoma Filling Station, a third car suddenly came out in front of him from behind the Coca Cola sign and caused him to swerve to the left and the collision followed immediately. There was much evidence tending to establish the fact that no car came out from behind the sign. Cummings testified that he had eaten his noonday meal shortly before the accident, and he was not conscious after the collision and did not remember making any statement that he had not eaten, and that he did not know what happened at the time of the accident. State Highway Patrolman Hollyfield and Dr. Shaefer were called to the witness stand and testified that each talked to Cummings shortly after the accident, that he was conscious at that time and did make the statements denied by him. We are of the opinion that this was proper impeachment testimony. Gause-Ware Funeral Home v. McGinley, Tex.Civ.App., 21 S.W.2d 347.

Furthermore, the record shows that appellant did not object to this testimony because no proper predicate had been laid for its introduction or that it was impeachment of a witness upon an immaterial matter, and having failed to make these objections at the time the evidence was offered appellant will not now be permitted to raise these objections to the admissibility of this testimony. 45 Tex.Jur. 35; Galveston, H. & S. A. Ry. Co. v. Jackson, 93 Tex. 262, 54 S.W. 1023.

Appellant cites the case of Red Arrow Freight Lines v. Gravis, Tex.Civ.App., 84 S.W.2d 540, as sustaining his contention here. That case is not in point. There the admission or statement of the truck driver was offered not as impeachment testimony, but as original evidence. In the case at bar if the statements of Cummings had been offered as original evidence they would not have been admissible, but where they are offered as impeaching evidence quite a different situation is presented.

Appellant's fifth proposition is as follows: "In laying a predicate for the purpose of impeachment of a witness, it is improper, under the pretense of affecting the witness' credibility, to propound questions without any attempt or pretense to establish the truthfulness of the matters suggested by such inquiry and thereby cast insinuations upon the witness as such questions thus propounded can serve but one purpose, and that is of creating in the minds of the jury a prejudice against the witness."

In the statement under this proposition is set out the question which was supposed to have been asked by counsel for appellee and the objection supposed to have been made by counsel for appellant to the supposed question. The question is followed by the following reference: "(S. F. Vol. 1, pp. 2, 60-65)." A reference to Vol. 1 of the Statement of Facts reveals that no such question or objection is contained therein. There is no testimony given by Arlis Cummings in Vol. 1, and it is therefore clear that the reference must have been to Vol. 2, where the testimony of Arlis Cummings appears. On page 65 of Volume 2 of the Statement of Facts is found the objection set out in the statement, but it is evidently made to a different question than that set out in the statement following the proposition. The record not supporting the statement, the proposition cannot be here considered.

However, it does appear that counsel for appellee did ask Arlis Cummings a number of questions, some of which were answered without objection, and when all of these questions are taken together they practically cover the supposed question set forth in the statement. The substance of appellant's objection is that these impeaching questions were asked in bad faith with no intention of later attempting to establish the truthfulness of the matters suggested by such inquiry. If we could consider the matter presented we would not sustain the proposition because we cannot agree that the questions were asked in bad faith.

Dr. Shaefer testified that about a week or so after the collision Cummings made the following statement to him: "He (Cummings) understood there was a woman had seen the collision—and by the way, it was at the Oklahoma Filling Station —there was a woman who had said she had seen a car come out from the side road ahead of him and caused him to go over to the left. He said he understood there was a woman had been found who would say she saw a car come into the road ahead of him."

Dr. Shaefer further testified that Cummings told him the night following the wreck that he (Cummings) did not know...