Franco v. Graham

Decision Date17 June 1971
Docket NumberNo. 618,618
Citation470 S.W.2d 429
PartiesRafael FRANCO et ux., Appellants, v. Bill GRAHAM et al., Appellees.
CourtTexas Court of Appeals

Allison, Maddin, White & Brin, Harry F. Maddin, James H. Smith, Corpus Christi, for appellants.

Kleberg, Mobley, Lockett & Weil, J. Lev Hunt, Corpus Christi, for appellees.

OPINION

BISSETT, Justice.

This is a suit for personal injuries sustained by Rafael Franco and his wife, Lydia Franco, arising out of a truck-automobile collision. Rafael Franco and wife, Lydia Franco, were plaintiffs in the trial court; Bill Graham, the owner of the truck, and Roosevelt Tillis, the driver of the truck, were defendants therein.

The case was tried to a jury which found, in substance, that (a) Roosevelt Tillis failed to keep a proper lookout which was a proximate cause of the collision; (b) Rafael Franco's automobile was on a public highway after dark without taillamps burning, which was negligence and a proximate cause of the collision; (c) Rafael Franco's automobile was stopped on the paved portion of a public highway, which was negligence and a proximate cause of the collision; (d) the reasonable medical expenses for Rafael Franco amounted to $1,545.55; and (e) the reasonable medical expenses for Lydia Franco amounted to $2,212.13. No damages were allowed to Rafael Franco for his injuries, no damages were allowed to him for injuries to his wife, and no damages were allowed to Lydia Franco for her injuries. Based on the jury verdict, the trial court entered judgment for defendants that plaintiffs take nothing. Appeal has been duly perfected to this Court. We affirm as to plaintiff Rafael Franco, but reverse and remand as to plaintiff Lydia Franco. The parties will be designated here as plaintiffs and defendants.

Plaintiffs present eleven points of error, whereby they complain, in substance, that (a) defendants' exhibits 30, 31, 32 and 33 (the taillight bulbs of the Franco automobile) should not have been admitted into evidence, (b) the trial court should not have excluded evidence about accidents other than the collision in question, (c) hospital records containing statements about how the accident happened should not have been admitted in evidence, (d) evidence about previous marital troubles and discord between the plaintiffs should not have been admitted, (e) there was no evidence and that such findings were against the great weight and preponderance of the evidence to support the jury's answers of zero dollars to the issues on pain and suffering of each plaintiff, and (f) plaintiff Lydia Franco was entitled to judgment for the medical expenses because the negligence of her husband should not be imputed to her.

The collision in question occurred on July 4, 1969, at about 3 o'clock A.M., on State Highway 44, within the city limits of Corpus Christi, Texas, though not in a built-up portion of the city. At that time, it was dark, the weather was clear, and the highway was dry. The collision took place along a straight section of the highway. The highway is a divided highway consisting of four traffic lanes and runs in an east-west direction; the north two lanes carry one way westbound traffic and the south two lanes carry one way eastbound traffic; the north two lanes and the south two lanes are separated by a grass median. Plaintiff Rafael Franco was driving a 1960 Ford Thunderbird and Lydia Franco, his wife, was a passenger therein. The defendant Roosevelt Tillis was driving a 1968 GMC tractor-trailer rig (hereinafter called truck) that was owned by the defendant Bill Graham. Both vehicles were in the outside lane of the south portion of the highway and were headed east when the truck struck the Thunderbird.

Roosevelt Tillis testified that he was travelling east in the outside lane of the highway at a speed of about 55 MPH when he saw what looked like a black spot in the road immediately ahead of him and in the outside or righthand lane of traffic he determined that the black spot was a car when he was 35 or 40 feet distant and thereafter his truck hit the car. He testified positively that at and immediately prior to the collision (a) plaintiffs' car was stopped on the paved portion of the righthand lane for eastbound traffic, and (b) plaintiffs' car did not then have any lights, front headlights or rear taillights, burning.

Rafael Franco testified that he, too, was proceeding east in the outside lane of the south portion of the highway when he was struck from the rear by the truck. He testified positively that (a) he was not stopped on the highway when his car was hit but that at the time and point of impact he was driving along at about 35--40 MPH, (b) his front headlights and rear taillights were burning, (c) his car was overrun by the truck while they were both occupying the identical lane of traffic, and (d) he had checked out the taillights on his car on July 2, 1969, and they were all burning properly at that time . Lydia Franco corroborated the testimony of her husband.

Plaintiffs' first and second points complain of the admission into evidence of the taillight bulbs from the Franco car. O. B. Roquemore was called as a witness by plaintiffs under the adverse party rule. He testified that on July 28, 1969, at the request of defendants and without the consent of plaintiffs, he removed the taillight bulbs from the Franco car which was then located in a storage yard for damaged vehicles; he further testified that he mailed them to Dr. William H. Tonn, Jr. the next day. In testimony adduced on plaintiffs' bill of exception and outside of the presence of the jury, the witness Roquemore could not positively identify the exhibits as being the identical taillight bulbs that he had mailed to Dr. Tonn; the markings that Roquemore had placed on the bulbs were somewhat obliterated and all that he would say was that 'they appear to be the same.' Mr. John Bentley was called as a witness by plaintiffs and he testified that, when he first examined the Franco vehicle on July 11, 1969, none of the taillamps were on the car. Dr . Tonn, a consulting engineer, who held B.S., M.S., and Ph.D. degrees in engineering from the University of Texas, was called as an expert witness by defendants. He testified that he received some taillight bulbs from Mr. Roquemore a couple of days after July 29, 1969, pursuant to a letter of transmittal from Roquemore, dated July 29, 1969. Whereupon, plaintiffs objected to any testimony concerning the bulbs and their introduction into evidence on the grounds that it had not been established that they were the same bulbs as those taken by Roquemore from the Franco vehicle nor had it been established that the bulbs were in the same condition that they were in subsequent to the accident. Plaintiffs' objections were overruled and Dr. Tonn then testified that the bulbs were broken when he examined them and that they were not burning when they were broken.

On the matter of whether the taillights on the Franco vehicle were burning or not at the time of the accident, in addition to the testimony of the witnesses Roquemore, Bentley and Tonn, summarized above, and the physical evidence of the bulbs themselves, the jury had before it the positive statement of Roosevelt Tillis that the taillights were not burning; the jury also had before it the hereinafter mentioned excerpt from the hospital records to the effect that evidently the lights on the Franco vehicle were out when it was struck by the truck. There is ample evidence in the record to support the answer by the jury to this special issue, irrespective of the admission into evidence of said exhibits of the effect thereof on the jury.

Jurors are the exclusive judges of the controverted issues of fact raised by the evidence, of the weight to be given the evidence, and the inferences to be drawn therefrom. They are the exclusive judges of the credibility of the witnesses. 'The law does not attempt to tell jurors what amount or kind of evidence ought to produce a belief in their minds.' McCormick & Ray, Texas Law of Evidence, Vol. 1, § 3, p. 6; Austin Fire Insurance Co. v. Adams-Childers Co., 246 S.W. 365 (Tex.Com.App., 1923); Beck v. Lawler, 422 S.W.2d 816 (Tex.Civ.App., Ft. Worth 1967, wr. ref. n.r.e .).

Moreover, the bulbs themselves constituted nothing more than demonstrative evidence. The taillight bulbs were connected to the Franco vehicle by the direct testimony of Roquemore; the chain of possession of the bulbs from Roquemore to Tonn to trial is established. The objection that the bulbs were not shown to be in the same condition as immediately after the collision goes to the weight and not to the admissibility of the bulbs in evidence. The admission of demonstrative evidence is largely within the discretion of the trial court. Liberty Sign Company v. Arendale, 433 S.W.2d 23 (Tex.Civ.App., Ft. Worth, 1968, n.w.h.); Western Cottonoil Company v . Adkisson, 276 S.W.2d 411 (Tex.Civ.App., Eastland 1955, n.w.h.); Ervay-Canton Apartments, Inc. v. Hatterick, 239 S.W.2d 150 (Tex.Civ.App., Ft. Worth 1951, wr. ref. n.r.e.); 23 Tex.Jur.2d, Evidence, § 388, pp. 578--579 and the cases cited therein.

Under the circumstances, we do not believe that the trial court abused its discretion in admitting the bulbs into evidence, nor do we find that their admission into evidence constituted such a denial of the rights of plaintiffs as was reasonably calculated to cause and probably did cause the rendition of an improper judgment within the meaning of Rule 434, Texas Rules of Civil Procedure, as contended by plaintiffs. Plaintiffs' first and second points of error are overruled.

Plaintiffs, by their third point of error, contend that the trial court erred in excluding from the evidence plaintiffs' exhibits 36, 37, 38 and 39, being photographs of wrecked automobiles that are not involved in thil appeal. Plaintiffs' witness John Bentley, a professional accident...

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