Flora v. Scott, 16596

• Decision Date: 24 September 1965
• Docket Number: No. 16596,16596
• Citation: 398 S.W.2d 627
• Parties: Eddie C. FLORA et ux., Appellants, v. Charles B. SCOTT, Appellee.
• Court: Texas Court of Appeals

Page 627

398 S.W.2d 627

Eddie C. FLORA et ux., Appellants, v. Charles B. SCOTT, Appellee.

No. 16596.

Court of Civil Appeals of Texas, Dallas.

Sept. 24, 1965.

Fred H. Benners, Matthews, Payne, Pace, Sands & Benners, Dallas, for appellants.

John Louis Shook, John D. Crawford, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.

DIXON, Chief Justice.

Appellants Eddie C. Flora and wife Ann Flora brought suit against appellee Charles B Scott for damages for alleged personal injuries to Ann Flora resulting from an automobile collision at a street intersection. Mrs. Flora was driving one vehicle, appellee Scott the other.

A jury returned a verdict finding appellee Scott guilty of negligence and proximate cause in several particulars. As to contributory negligence and proximate cause all issues were answered in favor of appellants except Issues Nos. 8 and 8A where answers adverse to appellants were made in regard to proper lookout and proximate cause. In answering the damage issues the jury found no damages by reason of physical pain, mental suffering, or lost earnings. However, the jury did find past doctors' and medical bills of $500 and $300 respectively and $210 future medical bills.

Based on the jury verdict judgment was rendered that appellants take nothing by their suit.

The trial lasted several days. Only a partial statement of facts was brought up on appeal. It reproduces only ten pages of the evidence adduced during the trial before the jury and thirty-five pages of the evidence on motion for new trial. The original of the deposition of appellants' treating doctor is also included in the record.

Appellants say they were unable to purchase a full statement of the testimony because of the cost of the record, estimated by the court reporter at $800. However, there is no showing that appellants sought to avail themselves of Rules 145, 355 and 380, Texas Rules of Civil Procedure.

In their first point on appeal appellants complain that the trial court refused to comply with Rule 372, T.R.C.P. Appellants tendered eight bills of exception for the court's approval. The judge refused to approve any of them. He returned them to appellants with his refusal endorsed thereon. Thereafter the judge signed seven 'Qualified Bills of Exception.'

We cannot consider appellants' eight proffered bills of exception which the judge refused to approve. Walden v. Sanger, Tex.Civ.App., 250 S.W.2d 312; Sisk v. Randon, 123 Tex. 326, 70 S.W.2d 689; 4 Tex.Jur.2d 43, § 513. In the absence of bystanders' bills the bills signed by the judge as qualified bills must be accepted by this court. Ray v. Pecos & N. T. Ry. Co., 40 Tex.Civ.App. 99, 88 S.W. 466; Rule 372(j), T.R.C.P.

Appellants assert in their brief that the trial judge violated Rule 372, Sections (h) and (i) by refusing to suggest any corrections in appellants' proffered bills of exception. However, there is no official record before us of the happenings at the hearing on appellants' proffered bills of exception. Therefore the official record is insufficient for us to pass on this alleged violation of Rule 372, Sections (h) and (i). Appellants' first point on appeal is overruled.

In their second point on appeal appellants say that the jury's specific findings in regard to each and every aspect of Mrs. Flora's driving exonerated her from any negligence, thus rendering the finding that she failed to keep a proper lookout without meaning or effect.

In support of their contention appellants cite the holding of our Supreme Court in Barclay v. C. C. Pitts Sand & Gravel Co., Tex., 387 S.W.2d 644. It was there held that an issue on proper control is quite broad and embraces any and every act or omission on the part of a driver which affects his control of the vehicle he is operating. Consequently when all acts and omissions raised by the evidence which affect control of the vehicle are specifically submitted, the more general issue on proper control need not be given. If it is given in that situation the specific findings will control what would otherwise be a conflicting answer to the proper control issue.

Appellants argue that the submission of proper lookout as a contributory negligence issue here is analogous to the submission of proper control in the Barclay case. Their view is that all the elements of proper lookout, a very broad issue, are submitted specifically, namely, right of way, speed (acceleration), brakes (stopping or slowing), turning to right or left (steering wheel) and warning (horn). Therefore there was no need to submit the issue of proper lookout and it had no place in the charge.

We cannot sustain appellants' point for several reasons. (1) They did not object to the submission of the issue on the ground stated in their second point on appeal. (2) In the absence of all but a small portion of the statement of facts we are unable to say whether all the acts and omissions included in proper lookout and raised by the evidence were specifically submitted. The small segment of the testimony presented in the partial statement has nothing to do with the issue of proper lookout. (3) Appellants did not file a motion to disregard the jury findings in answers to Special Issues Nos. 8 and 8A. Rule 301, T.R.C.P.; DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95. Appellants' second point is overruled.

The substance of appellants' third point is that they were denied a fair trial by the court's permitting improper impeachment of Mrs. Flora's treating doctor and her attorney with respect to highly inflammatory, collateral litigation.

The doctor's deposition in answer to written interrogatories was taken at the instance of appellants. He refused to answer a number of cross-interrogatories on the ground that they were irrelevant. The cross-interrogatories which are material to this point inquired whether it was true that the doctor is not allowed to practice in three promient Dallas hospitals; and whether he had lost a damage suit for $1,000,000 against one of the hospitals in which suit he had been represented by the attorneys who represent appellants in this suit.

Appellants filed a motion in limine asking the court to instruct appellee not to refer in any way to the interrogatories which the doctor had refused to answer. Appellants contend that the doctor was entitled to refuse to answer the interrogatories in question because they sought to impeach his credibility by proving particular acts of misconduct, which is not a permissible method of impeachment, citing Compton v. Jay, Tex. 389 S.W.2d 639; Christie v. Brewer, Tex.Civ.App., 374 S.W.2d 908; Tellefsen v. Key System Transit Lines, 158 Cal.App.2d 243, 322 P.2d 469, 67 A.L.R.2d 556, and McCormick & Ray, 'Texas Law of Evidence', §§ 655, 690 (2nd Edition).

By way of reply appellee points out that in answer to direct interrogatories the doctor, with reference to his medical qualifications, named various colleges, hospitals, etc., where he had studied and practiced neurological surgery. It is appellee's view that the cross-interrogatories in question are fair rebuttal questions to the above mentioned direct interrogatories. We do not reach this question for decision, for as we shall show hereinafter appellants' third point will be overruled for other reasons.

The court not only overruled appellants' motion in limine, but in its order directed that no part of the deposition of the doctor should be allowed in evidence unless and until the witness answered Cross-Interrogatories Nos. 50, 51, 52, 53, 56 and 57. A qualified bill of exceptions signed by the court recites '* * * the court further rules that none' of the doctor's 'deposition testimony could be presented to the jury unless * * * Plaintiffs stipulate affirmative answers to certain unanswered cross-interrogatories * * *.' (Emphasis ours.) The certain unanswered cross-interrogatories are those enumerated above.

We know of no rule which authorizes a court to require a litigant to stipulate that the answers of a deposition witness to unanswered interrogatories would be in the affirmative on pain of having all of the testimony of said witness excluded. It is true that Rule 188(g), T.R.C.P. provides that when a party whose deposition is taken refuses to answer an interrogatory the interrogatory shall be taken as confessed. But the rule applies only to parties to a suit. The doctor is not a party to this suit. Rule 188 does not require even a party to a suit to stipulate that unanswered interrogatories would be answered in the affirmative. In fact, Section (h) of the rule provides that upon trial of the case the party interrogated may take exception to any interrogatory on the ground that it is not pertinent and to the answer that it is not competent evidence. In construing similar statutes in effect prior to the enactment of the present rules it was held that a party's answer would be held to be confessed only with reference to an interrogatory which is pertinent and relevant. Harrison v. Knight, 7 Tex. 47; Barnard v. Blum, 69 Tex. 608, 7 S.W. 98; Hopkins v. Robertson, Tex.Civ.App., 138 S.W.2d 310.

We think that the rule now applicable when a deponent refuses to answer an interrogatory is Rule 215a, T.R.C.P. as amended in 1962. It applies to parties to a suit and to other deponents. It provides for certain procedures and if a witness persists in refusing to answer after being instructed by the judge to answer, the judge may hold the witness in contempt, or '* * * may make such orders in regard to the refusal as are just * * *.' However Rule 215a does not provide, and we do not believe it was intended to mean, that a party may be required on penalty of the exclusion of all a witness' testimony to stipulate an affirmative answer to an unanswered interrogatory, thereby waiving his objections to the admissibility of the interrogatories and answers.

Nevertheless we cannot sustain appellants' third point because the record shows that appellants did elect to...