Cummings v. Jess Edwards, Inc.
| Decision Date | 11 September 1969 |
| Docket Number | No. 437,437 |
| Citation | 445 S.W.2d 767 |
| Parties | Harvey W. CUMMINGS, Appellant, v. JESS EDWARDS, INC., Appellee. . Corpus Christi |
| Court | Texas Court of Appeals |
Allison, Baker & White, D. Yancey White, Corpus Christi, for appellant.
Lewright, Dyer & Redford, James W. wray, Jr., Corpus christi, for appellee.
This appeal is from a take-nothing judgment rendered after jury trial in favor of Jess Edwards, Inc., appellee-defendant against Harvey Cummings, appellant-plaintiff.
Cummings sued Edwards for damages on account of personal injuries allegedly suffered when pipe was being unloaded from a trailer at Edwards' place of business in Corpus Christi, Texas. The record reflects that on January 12, 1963 Cummings was an employee of T. E. Mercer Trucking Company of Houston, Texas, and the driver of a truck-trailer combination which transported a load of pipe from Houston to Corpus Christi, Texas. The pipe was of uniform size about 30 feet in length except two joints of about 18 feet each. Cummings arrived at the Edwards' yard in Corpus Christi about 4:30 P .M., and five employees of Edwards (Frank Haywood, Mansfield Thompson, Tilman Walker, Jonah Rives and Lonnie Johnson) began unloading the pipe, with the aid of a gin truck. Cummings was injured at a time when he was under the pole trailer and a short joint of pipe fell from it and struck him.
The jury refused to find any primary negligence against Edwards but found three grounds of contributory negligence proximately causing the accident against Cummings. Those findings were in substance (1) that Cummings failed to tell any member of the Edwards crew that he was going under the load of pipe, (2) that Cummings failed to tell Frank Haywood that he was going under the load of pipe, and (3) that Cummings was negligent in crawling under the load of pipe with knowledge that there were short lengths of pipe in the load. The damage issues were answered in an aggregate amount of $10,000.00. Thus, there was no basis for rendition of judgment in favor of Cummings, and the verdict as returned required rendition of judgment for Edwards.
Appellant Cummings asserts seven points of error as grounds for a new trial. These fall into three general categories. Point one complains of exclusion of the alleged tape recording of a telephone conversation between appellant's witness John Bentley and appellee's witness Jonah Rives. Points two, three and four complain of the exclusion of testimony given by appellant's witness Dr. Richard Austin, a psychologist. Points five, six and seven complain of errors concerning the inadvertent sending of an exhibit to the jury room which contained statements directed to the compensation insurance carrier for appellant's employer and alleged jury misconduct in the discussion of insurance.
Appellant's point one asserts that the trial court erred in excluding the actual recording of a telephone conversation between the appellant's witness, John Bentley, and one Jonah Rives, a witness for appellee. Appellant's basic position under this point is that prior to the trial Jonah Rives, a witness for appellee, had made a statement over the telephone to one John Bentley, an investigator for appellant, concerning the whereabouts of Ruby James, foreman of the Edwards pipe yard, which was in conflict with his testimony at the trial, and that Bentley had made a tape recording of the conversation which was admissible for the purpose of impeaching Rives.
The testimony of Jonah Rives, called as a witness for appellee on the trial of the case, relative to the point under consideration was as follows:
'Q Where was Ruby James at the time that the, at the very time that this man got hurt, where was Ruby James?
A Oh, he was in the pickup.'
'Q Did he ever go back up to the office after Mr. Cummings parked his truck, did Ruby ever go back up to the office after Mr. Cummings parked his truck, do you remember?
A No, sir, I don't recall, I don't remember.
Q You don't recall what?
'A Him going back up to the office, he could have.
Q You don't recall his doing that?
A No, sir.'
Thereafter, in response to questions propounded by counsel for appellant, Rives further testified as follows:
'Q Mr. Rives, whenever you talked with Mr. Bentley on the telephone, did you tell him that you didn't know who was hooking up on front?
A I told him I wasn't sure.
Q All right, you deny then that you told him that you did not know who was hooking up on front?
A Yes, sir, I said I wasn't positive who was hooking on the front.
Q Did he ask you if there were any short joints on top of the thing?
A No, sir, he asked me where was the short joint.
Q Okay, then you deny, I take it, that he asked you, 'Did he have any short joints on top of that thing,' and you deny that you answered, 'Yes, sir.'
A On top, yes, sir.
Q You deny that?
A Yes, sir, there wasn't any on the top.
Q All right, did he ask you where Tillman was?
A Yes, sir.
Q Did you tell him in answer to this question, 'I see, okay, well listen, do you remember where Tillman was,' and do you remember if your answer was, 'No, sir, I don't.'
A Well, where he was working?
Q No, where he was.
A At the time?
Q of the accident.
A No, sir.
Q No, sir, what?
A I don't remember saying that.
Q All right, sir, was Frank in the gin truck ties onto a pipe right before the short joint fell on Mr. Cummings?
A Was there a hook in the pipe?
Q Yes, sir.
A Yes, sir, we was unloading.
Q Well, then the answer was that you were tied into a pipe?
A Yes, sir.
Q Okay, and when Frank picked that one up, the short joint fell through, did it not, and hit Mr. Cummings on the hand?
A Yes, sir, that's the way it happened.
Q That's the way it happened?
A Yes, sir.
Q And therefore right after the accident, there would be a pipe picked up off of the load?
A Well, we had picked up a number of pipes.
Q I mean, what caused the accident, didn't you say it was the fact that a pipe was picked up and allowed, it allowed the short joint to fall through?
A No, sir, I don't remember that, but when we picked the pipe up, and the pipe, as we picked it up, the first pipe, the pipe rolls down and it continued to roll down, and that short pipe was in the middle of the load somewhere, I don't know exactly where it was, but anyway, it did work its way through and fell through.
Q Well, is it true or not, Mr. Rives, that when Frank, in the gin truck, picked up on the pipe that he was hooked onto, that left a place for the small joint to go through the load, there wasn't any other way that it could get through?
A Yes, sir, it fell through.
Q It fell through the place where Frank picked up the pipe?
A No, sir.
Q Okay.
A Because he picked up the pipe from the outside.
Q Do you recall the question, 'All right, was Ruby there when that happened,' did he ask you that?
A Yes, sir.
Q And was your answer, 'No, sir, he was up at the office but we went and got him and he come and got the man and taken him out to the hospital'?
A I remember saying he was, we went and got him, he was in his truck, we went to the truck, at least somebody hollered and told him and he come and asked the man did he want to take him to the hospital, to the doctor, rather.
Q All right, but what I am asking you is, do you deny that you said, 'No, sir, he was up at the office,' in answer to the question, 'All right, was Ruby there when it happened,' 'No, sir, he was up at the office but we went and got him and he come and got the man and taken him to the hospital'?' * * *
On rebuttal, appellant called the witness John Bentley who testified in part as follows:
'Q Did you ask him, Mr, Bentley, anything with reference to where Ruby James was at the time that the accident happened?
A Yes, I did.
Q And where and what did he tell you in that regard?
A He stated that Mr. James was at the office and as soon as the accident occurred they went to the office and got him and he took the man to the hospital in the pickup.'
Bentley was not cross-examined by appellee. He did not mention in the presence of the jury that he had made a tape recording of his conversation with Rives. The jury was excused while appellant made an offer of proof and Bentley was then questioned on the subject. He testified that he had made a tape recording of the conversation with Rives and produced a spool of tape which he said contained that recording along with recorded statements of other witnesses. He ran the tape on to a small spool, winding it backwards, and it was identified as Plaintiff's Exhibit No. 13.
Counsel for appellant then made the following statement:
'MR. ALLISON: All right, Your Honor, in that respect we offer for impeachment purposes only the following portions only of such statement, and request in our offer that the Court allow us to play these portions for impeachment purpose for the jury's consideration for the impeachment of the witness, Jonah Rives. (Mr. Allison reading from instrument the following:)
'To tie that in, Your Honor, we offer the following portions: 'Question, All right, was Frank tied onto the joint then? Answer, No, sir, he wasn't tied onto that one, he was tied onto another--Question, All right. Answer, As, as he picked that one up, well the, well it breaks down you see. You starts on the front and whenever you pick up one, another one just slides right down in its place, you know, from the top to the bottom; it works all the way from the top to the bottom. Question, So when he picked up on that one, well that let that short one fall down? Answer, ...
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Thoma, In re
...any kind of inducement. Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex.1980); see also Cummings v. Jess Edwards, Inc., 445 S.W.2d 767 (Tex.Civ.App.--Corpus Christi 1969, writ ref'd n.r.e.); Interest of T.L.H., 630 S.W.2d 441, 447 (Tex.Civ.App.--Corpus Christi 1982, writ dism'd w.o.j.). More......
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Bates, Matter of
...admission of all the tapes. Tapes Proper Predicate Judge Bates next contends that a proper predicate such as required in Cummings v. Jess Edwards, 445 S.W.2d 767, 773 (Tex.Civ.App. Corpus Christi, 1969 err. ref'd n. r. e.), was not established for the admission of the tapes. Judge Bates did......
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Wallace v. State
...kind of inducement. These requirements are set forth as part of a seven-pronged predicate in Cummings v. Jess Edwards, Inc., 445 S.W.2d 767 (Tex.Civ.App.-Corpus Christi 1969, writ ref'd n.r.e.). They were applied to criminal trials as well as civil cases in Edwards v. State, 551 S.W.2d 731 ......
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State v. Baca
...Inc. v. Edger, 92 Ga.App. 207, 88 S.E.2d 167 (1955); State v. Williams, 49 Wash.2d 354, 301 P.2d 769 (1956); Cummings v. Jess Edwards, Inc., 445 S.W.2d 767 (Texas Civ.App.1969). The record here discloses that a proper foundation for the admissibility of the officer's testimony was not provi......