Coastal States Gas Producing Co. v. Locker, 141

• Decision Date: 20 November 1968
• Docket Number: No. 141,141
• Parties: COASTAL STATES GAS PRODUCING COMPANY, Appellant, v. Helen LOCKER et al., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 592

436 S.W.2d 592

COASTAL STATES GAS PRODUCING COMPANY, Appellant, v. Helen LOCKER et al., Appellees.

No. 141.

Court of Civil Appeals of Texas.

Houston (14th Dist.).

Nov. 20, 1968.

Reformed and Affirmed Dec. 4, 1968.

Rehearing Denied Jan. 8, 1969.

James R. Bertrand, William R. Eckhardt, Vinson, Elkins, Weems & Searls, Houston, for appellant.

Tom Lorance, Lorance & Stamm, Harold Lloyd, Lloyd & Shenk, Finis E . Cowan, Baker, Botts, Shepherd & Coates, Don Weitinger, Stafford & Weitinger, Houston, Bill Allen, guardian ad litem, Houston, for appellees.

SAM D. JOHNSON, Justice.

This suit was brought by Helen Locker, individually and as Next Friend of her minor son, Larry Locker, against Coastal States Gas Producing Company, Ford Motor Company, Jacobe-Pearson Ford Company, and Executive Car Leasing Company. The suit was for recovery of damages for personal injuries allegedly sustained in an automobile collision that occurred on April 23, 1965. The action was dismissed as to Jacobe-Pearson Ford and a motion for directed verdict in favor of Executive Car Leasing Company was granted.

On the occasion in question a new Lincoln Continental automobile was being driven by Morris Wayne Rape, who was an employee of Coastal States Gas Producing Company. The automobile as manufactured by Ford and sold by Ford's dealer, Jacobe-Pearson, to Executive Car Leasing Company, who in turn leased the automobile to Coastal States Gas Producing Company. As Rape drove the automobile out of the Sheraton-Lincoln hotel garage, it collided with an automobile being driven by Helen Locker, in which Helen Locker was accompanied by her son, Larry Locker, who was riding in the right front seat. The Locker vehicle was in the street passing by the parking garage when it was struck in the right side by the automobile being driven by Rape.

Based on favorable jury findings for the plaintiffs, the court entered judgment against Coastal States for both Helen Locker and her son, Larry Locker. The total judgment in behalf of Helen Locker was $93,000.00, which included $50,000.00 for care and treatment of Larry Locker to the age of twenty-one years. The balance awarded Helen Locker was for physical pain, mental anguish, reduced earnings and earning capacity, loss of services performed by Larry Locker and future medical treatment to Helen Locker. The judgment for Larry Locker was $500,000.00 which included $400,000.00 for mental impairment, mental anguish and reduced wage earning capacity, and $100,000.00 for care and treatment beyond the age of twenty-one years.

In essence, plaintiffs contended that they had been injured in a collision caused by the negligence of either Coastal States or Ford, or both. The jury found that the cause of the accident was the failure of Rape, the Coastal States' driver, to maintain a proper lookout and to make proper application of his brakes. Judgment was entered for plaintiffs on the basis of these liability findings.

It was Coastal States' theory that the cause of the accident was a brake failure on the automobile being driven by its driver, Rape. Coastal States' contention in the trial court was that there was air in the brake fluid and that the presence of this air accounted for their not working at the time of the collision even though they had previously operated properly.

The testimony of two Coastal States' employees was that the automobile in question was new, having been driven less than 90 miles. During this time the automobile, including the brakes, functioned perfectly. Rape testified that on the date in question he drove up the ramp of the parking garage without making any application of his brakes. He testified that he drove to the exit of the Sheraton-Lincoln parking garage and when he was a couple of feet from the curb for the first time made an application of his brakes. It was Rape's testimony that the brakes did not work or respond. His superior, also a Coastal States employee, testified in support of the brake failure theory. It was his testimony that shortly after the accident he pumped the brakes a number of times and that the brake pedal went all the way to the floor without response. Rape further testified that without any work on the brakes, he shortly thereafter drove the automobile back down the ramp into the parking garage and experienced no difficulty with the brakes. Following the collision Coastal States requested the brakes to be checked by Jacobe-Pearson. Coastal States' theory, as well as its version of the accident, is altogether inconsistent with that of the plaintiffs, and appears to have been wholly rejected by the jury.

Plaintiff, Helen Locker, testified that as she approached the place where the collision occurred, she saw a large black automobile stopped dead still just outside the parking garage and that the driver of the vehicle was looking down at the dashboard or floorboard. It was her testimony that it was this automobile that moved forward as she was passing and struck the right side of her vehicle. It was the plaintiff's theory that the collision occurred without any nature of warning to the plaintiffs and that it caused the extensive damages that were occasioned.

Appellant initially contends that the court committed prejudicial error in refusing to admit in evidence portions of certain business records of Jacobe-Pearson. The first was exhibit number five, which was a repair order of Jacobe-Pearson that came into existence when the Coastal States employee took the car that was driven by Rape in for service and to be checked after the collision. The exhibit contained the following notation made by the service writer to whom the car was initially taken, 'Check brakes for going to floor and report. See Butler.' It does not appear that this was a record of any test done by a Jacobe-Pearson employee, but was the complaint made by the Coastal States employee who brought the automobile to Jacobe-Pearson for service. This notation, therefore, while placed upon a business record, was not a notation by some person or employee having personal knowledge of the matter recorded. More accurately, it was a self-serving declaration by a Coastal States employee that was placed upon the business record when it occurred.

The second excluded notation was, 'Air in brake system--abnormal time to remove air to get brake pedal.' This notation was placed upon the record by the Jacobe-Pearson service manager in the course of later making a warranty claim against the manufacturer, Ford. The record here indicates that this second notation was not a recitation of fact based on personal knowledge of anyone testing the brakes but actually was conjecture on the part of the service manager. The mechanic who bled the brakes testified there was no air in the brake fluid and that he never advised the service manager or any of his superiors that there was air in the braking system of the vehicle. The service manager testified that he arrived at his conclusion from the notation on the time card indicating that an hour and a half had been used in removing the brake fluid from the vehicle. He testified, however, that one could not tell from an analysis of the time involved that there was air in the brake system . He further stated that the time clock that made the entries upon which he based his speculation was out of order and that the time entries were inaccurate.

Even though contained in a properly authenticated record, opinions based upon mere speculation and conjecture should be excluded. Travis Life Ins. Co. v. Rodriquez, 326 S.W.2d 256 (Tex.Civ.App.), ref., n.r.e. at 160 Tex. 182, 328 S.W.2d 434. Martinez v. Williams, 312 S.W.2d 742 (Tex.Civ.App., Houston), no writ hist. Opinions expressed in records are admissible only where an opinion is well recognized and a reasonably certain one on which experts would not normally disagree. Loper v. Andrews, 404 S.W.2d 300 (Tex.Sup.Ct.1966). Rather than a well recognized opinion the notation here was speculation and conjecture. The requirement for personal knowledge may be unique to the Texas statute, Art. 3737e, nevertheless it is applicable to this jurisdiction. Loper v. Andrews, supra; North Texas Lumber Co. v. Kaspar, 415 S.W.2d 470 (Tex.Civ.App.), ref., n.r.e.; Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.Sup.Ct.1962).

Appellant further contends that the trial court erred in refusing to admit in evidence a statement contained in the history that the plaintiff, Helen Locker, gave to Dr. Homer Taylor. The excluded portion recited, 'The patient (Helen Locker) states that this car hit her broadside due to faulty brakes.' Plaintiffs here plead that the accident was caused by brake failure. The plaintiff's consistent position was that this collision was caused by either the negligence of Coastal States, or Ford, or both. Though Mrs. Locker testified that the Coastal States vehicle was stopped as she approached the point of impact, her testimony was not inconsistent with some type of brake failure on the part of the other vehicle. It was her testimony, in fact, that she never saw the car that hit her move. The record gives no indication that Mrs. Locker had any personal knowledge that the accident involved faulty brakes. The only basis for this statement would be the self-serving declarations of the Coastal States employees at the scene of the accident.

According to the position and testimony of Mrs. Locker, the only thing she could know of her own knowledge with reference to the accident was that she was struck in the right rear by the Coastal States vehicle. She would have no method of having personal knowledge as to whether or not the Coastal States vehicle had a brake failure. The quoted language therefore, was the reflection of an opinion statement made by Mrs. Locker that was based on self-serving declarations of employees of the adverse party. We do not believe this statement to have been an admission against Mrs. Locker's interest...