Chuppe v. Gulf Iron Works, Inc.

• Citation: 306 S.W.2d 177
• Decision Date: 20 September 1957
• Docket Number: No. 3324,3324
• Parties: George CHUPPE et al., Appellants, v. GULF IRON WORKS, Inc., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 177

306 S.W.2d 177

George CHUPPE et al., Appellants, v. GULF IRON WORKS, Inc., Appellee.

No. 3324.

Court of Civil Appeals of Texas, Eastland.

Sept. 20, 1957.

Rehearing Denied Oct. 25, 1957.

Lewright, Dyer & Redford, Nye & Cohn, Corpus Christi, for appellants.

Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellee.

GRISSOM, Chief Justice.

Eisenhauer was the general contractor for construction of a school building and Gulf Iron Works was a subcontractor. Gulf Iron Works' contract required it to build the porches, including their supports. The edge of the canopy covering the north porch extended past a beam. It was to be covered by a roofing material and facing was to be placed along the edge by Eisenhauer. It was necessary for carpenters to go on the proches to perform such work. Supports, or braces, for canopies were installed by Gulf Iron Works at regular intervals on both the south and north porches, except at one corner on the north porch. Originally there was a plan for joinder with another building at this corner and no brace was called for there by the plan. The plan for an adjoining building was abandoned and Gulf knew this before it did any work on the porches. The iron workers for Gulf had apparently completed their work and had been gone several days when Chuppe and another carpenter were ordered by Dolezol, construction superintendent for Eisenhauer, to go on the canopies and do some carpenter work. To do this work the carpenters had to make certain measurements. Chuppe and the other carpenter finished their work on the south porch, went on the north porch and had started making measurements when Chuppe walked near the edge of the canopy where the brace was missing, the canopy bent under him, Chuppe lost his balance, fell to the ground and broke his feet. Chuppe sued the Gulf Iron Works for damages. He alleged Gulf was charged with the duty of installing braces under said canopy and knew that Eisenhauer's employees would be required to go on that portion of the canopy which was not supported by a brace and that the failure to support it with a brace at the place where he fell would probably result in injury to a carpenter. A jury found that the failure of Gulf to install said brace was not negligence but that Chuppe failed to keep a proper lookout for his own safety and such failure was a proximate cause of the accident. Judgment was rendered for the defendant and Chuppe and another have appealed.

Appellants' first point is that the court erred in permitting Dolezol to testify to his opinion of who was responsible for the accident. Gulf alleged Dolezol was negligent in ordering Chuppe to go on the canopy and that this was the sole cause of Chuppe's injury. Dolezol was called as a witness by Gulf. On cross examination by Chuppe he was asked whether he thought he (Dolezol) was the sole cause of the accident. He answered, 'No, sir.' There was no objection to either the question or answer. On re-direct examination Dolezol was asked by counsel for Gulf Iron Works whether he thought the cause of the accident was Chuppe's failure to watch where he was going. Appellants objected to the witness testifying to the cause of the accident because that was an ultimate issue in the case, was hearsay and invaded the province of the jury. The objection was overruled, apparently on the theory that it became admissible because plaintiff had asked Dolezol whether he thought he was the sole cause of the accident and the witness had answered, 'No, sir.' Whereupon, Dolezol was again asked by defendant whether he thought the cause of the accident was Chuppe's failure to watch where he was going. Dolezol then answered that he thought both Chuppe and Gulf Iron Works were negligent; that he thought Gulf Iron Works was negligent in leaving off the brace and Chuppe was negligent in not watching where he was going.

The court erred in permitting the witness to so testify. In 2 McCormick and Ray, Texas Law of Evidence, 281, it is stated that the Texas courts have usually excluded opinion as to carelessness and prudence since they are mixed questions of law and fact and such testimony constitutes an invasion of the province of the jury.

'--a witness may not ordinarily express his opinion as to the cause of a particular accident or occurrence.' 19 Tex.Jur. 18.

'The opinion of an expert on the question of due care or negligence is doubly objectionable as involving a preliminary question of law and as an invasion of the province of the jury to determine ultimate issues, and is therefore inadmissible.' 19 Tex.Jur. 34, 35.

'Thus title or want of title, mental capacity or lack of it, fraud or good faith, due care or negligence, are all conclusions which the law draws from certain facts; and when the jury seek to determine--whether a party used due care, the ultimate question for determination is a mixed question of law and fact.' 19 Tex.Jur. 104, 105.

In Texas & P. R. Co. v. Felker, 40 Tex.Civ.App. 604, 90 S.W. 530, 531, the court said:

'We believe no case can be cited where it is held that a witness may testify that an act does or does not constitute negligence.'

In Houston & T. C. R. Co. v. Roberts, 101 Tex. 418, 108 S.W. 808, 810, our Supreme Court held that an experienced cattleman could not testify as to what he considered a reasonable time within which to transport cattle if done with ordinary care and diligence because it was an opinion on a mixed question of law and fact. In Carroll v. Magnolia Petroleum Company, 5 Cir., 223 F.2d 657, it was held reversible error for an expert witness to testify as to his opinion of the cause of an accident. The following authorities are to the same effect: San Antonio Brewing Ass'n v. Wolfshohl, Tex.Civ.App., 155 S.W. 644, 645, (Writ Ref.); Houston & T. C. R. Co. v. Rippetoe, Tex.Civ.App., 64 S.W. 1016, 1018; Carter v. Lindeman, Tex.Civ.App., 111 S.W.2d 318, 320; Banker v. McLaughlin, Tex.Civ.App., 200 S.W.2d 699, 703, affirmed 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231; Campbell v. La Due, Tex.Civ.App., 273 S.W.2d 450, 453; Missouri, K. & T. Ry. Co. of Texas v. Grimes, Tex.Civ.App., 196 S.W. 691, 694; St. Louis & S. F. R. Co. v. Nelson, 20 Tex.Civ.App. 536, 49 S.W. 710, 713; Dallas Hotel Co. v. McCue, Tex.Civ.App., 25 S.W.2d 902, 906; International & G. N. R. Co. v. Kuehn, 11 Tex.Civ.App. 21, 31 S.W. 322, 324; Commercial Union Assurance Co., Limited of London, England v. Everidge, Tex.Civ.App., 72 S.W.2d 311; St. Louis, B. & M. Ry. Co. v. Griffin, Tex.Civ.App., 56 S.W.2d 482, 483 and Wichita Valley Ry. Co. v. Turbeville, Tex.Civ.App., 269 S.W. 498, 503.

In answer to Chuppe's contention that the introduction of said testimony constituted reversible error Gulf Iron Works calls attention to the fact that Chuppe alleged Gulf was negligent in failing to install the brace and in failing to warn Chuppe of its absence; that Gulf had alleged it had complied with the specifications and that the sole cause of Chuppe's injury was the negligence of Dolezol in sending him to work on the roof without telling him about the missing brace. Gulf says that, obviously, it was to Chuppe's benefit to overcome such defenses by eliciting from the witness Moore that he was not putting the blame on Dolezol and eliciting from Dolezol his opinion that he was not the sole cause of Chuppe's injury; that it was only after Chuppe had gone into the matter of causation and elicited said opinions as to the cause of the accident that Gulf, on re-direct examination, questioned Dolezol about his opinion. It concludes that if said questions and answers constituted error they were invited by appellants. This conclusion cannot be sustained. The fact that...