Brown & Root v. Haddad

• Decision Date: 10 May 1944
• Docket Number: No. 8209.,8209.
• Parties: BROWN & ROOT, Inc., et al. v. HADDAD.
• Court: Texas Supreme Court

180 S.W.2d 339

BROWN & ROOT, Inc., et al. v. HADDAD.

No. 8209.

Supreme Court of Texas.

May 10, 1944.

Rehearing Denied June 7, 1944.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Abraham Haddad against Brown & Root, Inc., and another, for the death of plaintiff's son Abraham Haddad, Jr., in an automobile accident. A judgment for the defendant was reversed and the cause remanded by the Court of Civil Appeals, 175 S.W.2d 269, and the defendants bring error.

Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

Kemp, Lewright, Dyer, Wilson & Sorrell and W. M. Lewright, all of Corpus Christi, for plaintiffs in error.

Phillips & Anderson and Warren B. Phillips, all of Corpus Christi, and L. Hamilton Lowe, of Edinburg, for defendant in error.

HICKMAN, Commissioner.

This suit was brought by the father of Abraham Haddad, Jr., a minor, against Brown & Root, Inc., and its truck driver, Otto Darst, for damages for the boy's alleged wrongful death. The case was submitted to a jury on special issues, all of which were answered adversely to the plaintiff and in favor of the defendants, and upon the verdict judgment was rendered that the plaintiff take nothing. That judgment was reversed by the Court of Civil Appeals and the cause remanded. 175 S.W.2d 269.

The boy's death came about as the result of his being struck by a truck belonging to Brown & Root, Inc., and operated by Darst. He had been riding a bicycle, but one of the tires became punctured and at the time he was struck he was steering his bicycle as he walked home on the highway. The truck which struck him was traveling the same direction as that in which he was walking. J. R. Roensch, a State Highway Patrolman, under the jurisdiction of the Department of Public Safety, investigated the accident a few minutes after it happened, making notes in connection with his investigation. Thereafter, he reported the result of his investigation to the Department of Public Safety upon a form furnished him for that purpose. Over the objection of the plaintiff this report was admitted in evidence upon the trial, and the principal question presented for decision is whether or not the court erred in admitting the report.

The statutes under which the Patrolman acted in reporting the accident are Sections 39, 40, 41 and 42 of Article 6687b, Vernon's Texas Annotated Civil Statutes. They are copied in full in the opinion of the Court of Civil Appeals and will not be recopied here.

The Court of Civil Appeals held that the report was a privileged communication, for which reason the trial court erred in admitting same, or any part thereof, in evidence. An application for writ of error was filed in this court by the petitioners and was refused for want of merit in an opinion per curiam. On motion for rehearing the application was granted and the opinion was, therefore, not published. We here quote same in full as the opinion of the Court on the construction of the statutes above quoted with respect to the question of whether or not the Roensch report was a privileged communication. It is as follows:

"We approve the judgment of the Court of Civil Appeals reversing the judgment of the trial court and remanding the cause, because the trial court erred in admitting the entire report made by patrolman Roensch to the Department of Public Safety. 175 S.W.2d 269. However, that report is not a privileged communication under Sec. 42, of Art. 6687b, Vernon's Anno.Civ. Stat. This is made clear by a consideration of Secs. 39 and 40, of the same article. Sec. 39 requires reports of accidents by `every person involved,' that is, by every party to the accident, and provides that such reports `shall be deemed privileged communications.' Roensch's report was called for by Sec. 40 as the findings of an officer investigating the accident, and it says nothing about any such report being privileged. Clearly, then, the purpose of Sec. 42 is to qualify the blanket privilege extending to reports made by `persons involved' by Sec. 39, in two particulars, namely (1) to permit the Department of Public Safety to disclose the identity of any person involved in an accident, when such is not known or when such person denies his presence at the accident; and (2) to permit the Department of Public Safety to certify that such report was made, to prove that any person claiming to have made the report has or has not made it.

"Obviously, Roensch's report, as such, is a hearsay statement and should be excluded at another trial, if objected to on that ground, except such parts thereof only as may tend to impeach any direct evidence given by Roensch. For example when he testified during the trial under review that the windshield on defendant's truck was in a dirty, dusty or muddy condition, it was proper, for impeachment purposes only, and after proper predicate had been laid, to show that he stated in his report that defendant's driver `was blinded by bright lights on bus and other cars and was unable to see pedestrian in time to avoid collision.'

"The petitioner's application for writ of error is refused for want of merit."

On motion for rehearing petitioners took the position that, since under our opinion a portion of the report was admissible for the purpose of impeaching Roensch's testimony, and since the only objections leveled by respondent against same were directed to it in its entirety, the trial court correctly overruled the objections.

The only question presented in the application involves the admissibility of evidence which is not decisive of the case. As a general rule we would dismiss such an application, but since a correct disposition of the case necessarily involves the construction of the statutes above...