Farley v. M M Cattle Co., 8465
| Decision Date | 21 October 1974 |
| Docket Number | No. 8465,8465 |
| Parties | Benny FARLEY, by and through his next Friend, Charles Ballman, Appellant, v. M M CATTLE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Miller, Gann & Perdue, Jim M. Perdue, Houston, Edwards, Smith & Associates, Amarillo, for appellant.
Gibson, Ochsner, Adkins, Harlan & Hankins, A. B. Hankins, Kolander, Templeton & Hamilton, Amarillo, for appellee.
Plaintiff Benny Farley brought suit for damages for personal injuries sustained when the horse he was riding collided with another horse ridden by a co-worker while they were in the process of rounding up cattle belonging to the defendant, M M Cattle Company . At the conclusion of plaintiff's evidence, the trial court entered a take-nothing judgment against the plaintiff on the basis of defendant's motion for an instructed verdict. The plaintiff has brought this appeal from such judgment. Affirmed.
On July 12, 1972, Benny Farley, Danny Beebe, James Guinn and Cyril Houston 'Bunk' Farley, were rounding up calves from a pasture of Bear Creek Ranch owned and operated by the defendant cattle company. 'Bunk' Farley was the foreman of the ranch and the father of Benny Farley. On the occasion in question, Danny Beebe, Benny Farley and James Guinn, on horseback, were engaged in moving some calves when one of the calves broke away from the group. Both Danny Beebe and Benny Farley started after the calf on their respective horses. While pursuing the calf, the horses ridden by Beebe and Farley were heading in such a direction or course which, if continued, would result in a collision of the two horses. Upon discovering the impending peril, Danny Beebe reined his horse to the left away from Benny Farley's horse; however, at almost the same instant Benny Farley's horse struck the side of Danny Beebe's horse, and as a result of the collision, Benny Farley suffered severe personal injuries.
The pleadings upon which the plaintiff went to trial alleged negligence on the part of defendant in four respects: (1) in furnishing plaintiff a horse which was unsafe to use for the work that was to be done; (2) in instructing plaintiff to use the horse for rounding up cattle under such circumstances as to pose unreasonable risk and harm to him; (3) in failing to properly supervise the plaintiff; and (4) in failing to furnish plaintiff a horse which was suitable for the purpose for which the animal was intended to be used. Further, plaintiff alleged that such negligence on the defendant's part was a proximate cause of the injuries sustained by him. In its answer, the appellee cattle company pleaded defensively, among other matters, that the plaintiff voluntarily encountered whatever risks existed in connection with using the horse; contributory negligence on plaintiff's part; plaintiff's assumption of risk; the fellow servant rule; the co-worker's negligence as a new and intervening cause; and the doctrine of parental immunity of the plaintiff's father which would protect the defendant as the father's employer.
Upon conclusion of plaintiff's evidence, the defendant presented a motion for an instructed verdict based upon contentions that the evidence submitted by the plaintiff failed to raise a fact issue for jury determination of any of the alleged acts of negligence or proximate cause on the part of defendant. Further, the defendant contended that the evidence introducd established as a matter of law that the plaintiff voluntarily exposed himself to the risk, was guilty of contributory negligence or assumed the risk. Additionally, defendant contended that the plaintiff was barred from recovery by the fellow servant rule, parental immunity, or that negligence of Danny Beebe was established as a matter of law thereby constituting a new and intervening cause. The plaintiff's appeal from the take-nothing judgment entered by the trial court is predicated upon ten points of error.
In the first eight points the plaintiff-appellant complains of the action of the trial court in granting the instructed verdict. By points one and two, appellant contends that the trial court erred in granting such instructed verdict and entering judgment for appellee on the grounds that the evidence presented raised fact issues of (1) negligence and (2) proximate cause. By points three through eight, the appellant contends that it could not be held that the respective defenses pleaded and specifically urged by appellee in its motion for instructed verdict were established as a matter of law. Further, appellant contends by points nine and ten that the trial court erred in excluding certain testimony relating to the co-worker's description of appellant's facial expression immediately prior to the accident and the opinion of plaintiff's father as a witness concerning the cause of the accident based upon a hypothetical question.
Although as a result of the injury Benny Farley was unable to testify, the plaintiff-appellant contends that the evidence admitted by the court was sufficient to raise issues of negligence and proximate cause. Plaintiff further contends, alternatively, that the trial court excluded admissible evidence which would bear on such issues and be sufficient to raise fact questions for the jury's determination. In view of the latter contention, we have determined to consider initially appellant's points nine and ten complaining of the court's action in excluding the testimony concerning the facial expression of the plaintiff just prior to the collision and Bunk Farley's opinion testimony regarding the cause of the accident resulting in the plaintiff's injuries.
The only persons present at the precise location of the collision were the plaintiff, Benny Farley, and Danny Beebe. Because of the injuries sustained, the plaintiff was unable to testify, and Danny Beebe was unable to testify regarding the exact cause of the collision, for he declared that he was looking in the opposite direction at the time of the collision. However, Danny Beebe was asked by plaintiff's attorney to describe the expression on Benny Farley's face just prior to the collision. The defendant objected to such question on the grounds that it called for an opinion and conclusion which the witness was not qualified to give. The objection was sustained by the trial court and the testimony was excluded from consideration by the jury; however, such testimony was heard outside the presence of the jury for the purpose of perfecting the bill of exceptions. The answer of the witness, Danny Beebe, to such question was, 'It's an expression that people get on their faces when things aren't going right.' He then tried to further clarify this answer in response to questions by plaintiff's attorney by stating, as an example, 'If you was (sic) on a good horse, and the good horse didn't do what you like, this expression would be on your face.' The plaintiff contends, by point number nine, that such testimony is admissible under the 'shorthand rendition of facts' or 'collective facts' exception to the general rule of inadmissibility of opinion testimony of non-expert witnesses, and therefore it was error for the trial court to exclude such testimony from the jury's consideration.
It is well settled in Texas that non-expert opinion of a lay witness is admissible provided the facts are so numerous, complicated or evanescent that they cannot be communicated to the minds of the jurors by words or gestures in such a manner as to give them the Knowledge possessed by the witness. Colls v. Price's Creameries, Inc., 244 S.W.2d 900 (Tex.Civ.App.--El Paso 1951, writ ref'd n.r.e.) Statements tending to show emotions or demeanor are admissible as a 'shorthand' rendering of facts. See 2 McCormick and Ray, Texas Evidence § 1397 (2d ed. 1956), and authorities cited therein. If, however, the opinions are the result of the voluntary process of reasoning by the witness or are in the nature of mere guesses, surmises and conjectures, they are inadmissible. See 23 Tex.Jur.2d Evidence §§ 455, 502 (1961) and authorities cited therein.
Danny Beebe testified that he Did not know what Benny Farley did in an effort to avoid the collision and that he Did not know whether or not Benny tried to rein his horse. His answer to the question regarding Benny's facial expression goes further than mere description of a common, well-known expression or statement tending to show emotion or demeanor. Since it is recognized that one person cannot possibly know another's state of mind, his testimony concerning such is necessarily based on conjecture. 2 McCormick and Ray, Texas Evidence, supra, § 1428. It appears that the statements given by Danny Beebe should be regarded as inferences based upon surmise, conjecture, or conscious reasoning, and not based upon factual knowledge possessed by the witness. Therefore, it is our opinion that the trial court did not err in excluding the testimony of Danny Beebe regarding the expression on Benny Farley's face. Appellant's point number nine is overruled.
By point number ten, appellant contends that the trial court erred by not admitting certain testimony of Bunk Farley as an expert witness. Bunk Farley, foreman of the defendant cattle company and father of plaintiff, was the only person other than plaintiff to ride 'Crowbar,' the horse being ridden by Benny Farley at the time of the accident. He broke and trained the horse and trained the plaintiff to ride. Further, he testified that he had worked on ranches and handled horses for a number of years. After such qualification and an admission that the witness had not seen the accident, he was asked, in order to perfect the bill of exceptions, a hypothetical question as to whether Benny Farley, in his opinion, would have reined his horse to the right in such a situation in order to avoid a collision. The answer was to the effect that Benny would have tried to rein Crowbar in...
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Farley v. M M Cattle Co.
...entered a take-nothing judgment against Farley based upon defendant's motion for instructed verdict. The court of civil appeals affirmed. 515 S.W.2d 697. We reverse the judgment of the court of civil appeals and remand the case to the trial On July 12, 1972 Benny Farley, Danny Beebe, James ......