Haney Elec. Co. v. Hurst, 20725
| Decision Date | 17 August 1981 |
| Docket Number | No. 20725,20725 |
| Parties | HANEY ELECTRIC COMPANY and Marion Willard Stewart, Appellants, v. Thomas M. HURST, Cheryl Hurst, and Howard Lane, Appellees. |
| Court | Texas Court of Appeals |
Richard Gary Thomas, Donald F. Lively, Maxwell, Bennett, Thomas, Carlton & Maxwell, Dallas, for appellants.
Charles H. Clark, Tyler, Morton A. Rudberg, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellee.
Before GUITTARD, C. J., and CARVER and STEPHENS, JJ.
This case arose from a three-vehicle collision on LBJ Freeway in Dallas in which one driver was killed and another seriously injured. Separate suits against the driver of the third vehicle and its corporate owner were consolidated and tried before a jury, which attributed the negligence 30% to the deceased driver, 30% to the injured driver, and 40% to the driver of defendants' vehicle. Judgment was rendered for each claimant for 70% of the damage, and defendants appeal. We reverse and remand for a new trial because of the exclusion of certain evidence, and we hold that each plaintiff's damages must be assessed by comparing it with the negligence attributed to the defendants, without considering the negligence attributed to the other plaintiff.
Defendants' first point complains of the exclusion of an alleged res gestae statement of the driver of a fourth vehicle to the effect that his vehicle was also involved in the collision. We hold that the ruling was error and was probably prejudicial to defendants in that the excluded testimony tended to corroborate defendants' theory of how the collision occurred.
Plaintiffs' evidence tended to show that only three vehicles were involved in the collision. According to plaintiffs, all three were traveling in an easterly direction and in the same lane of traffic, with a Datsun stationwagon driven by the decedent Evelyn Lane in the lead. Mrs. Lane apparently drove over some metallic debris which became lodged under her car and affected her steering. According to plaintiffs, she brought the Datsun to a complete stop. Immediately to her rear was a United States postal truck driven by plaintiff Thomas Hurst. According to Hurst, he observed Mrs. Lane's difficulty and brought his truck to a stop twenty-five to thirty feet behind the Datsun. Then, according to plaintiffs' witnesses, a tractor-trailer truck operated by defendant Marion Stewart and owned by defendant Haney Electric Company struck the postal truck in the rear and knocked it violently against the Datsun. There was evidence that Hurst's postal truck brust into flame upon impact from the Haney truck and that massive damage was caused to the rear of the Datsun. Mrs. Lane suffered fatal burns, as well as other injuries, and Hurst also suffered burns.
Defendant Stewart testified that he was traveling in the second lane from the center strip, and the other vehicles, including the Datsun, the postal truck, and a light-colored pickup truck, were traveling in the third lane. Stewart said that the Datsun suddenly slowed and began weaving, and then the postal truck closed in and "ran into the back of the Datsun with a fairly heavy force." After the impact, the two vehicles looked like their bumpers had locked because they stayed close together and remained in alignment. Immediately after the first impact, according to Stewart, the light-colored pickup looked like it hit the postal truck or "came extremely close to it." The Datsun and the postal truck then moved quickly into the second lane, and Stewart, who had started to pull over to the left, applied his brakes, but was unable to stop. His truck struck the postal truck heavily from the rear and then came to a stop in the first lane, next to the center strip. He got out of his truck and went to the Datsun, which was on fire, and attempted to open the door, but was unable to do so. Stewart testified that the light-colored pickup was parked near the scene after the impact.
The excluded testimony was that of defendants' witness, Joseph Horn. Horn testified without objection that he was traveling in the first lane. He said that the vehicle immediately in front of him in the third lane was a pickup truck and ahead of that was a postal truck. He did not see what was in front of the postal truck. He saw an impact between the pickup and the postal truck, and he immediately swerved to the right and stopped on the shoulder. He did not see the impact between the Haney truck and the other vehicles. He helped the postal driver out of his truck, and he also talked to the driver of the pickup, whom he described as "a young boy about twenty-two, twenty-three years old" and "very scared."
Defendants' counsel then attempted to elicit testimony from Horn concerning statements made to him at the scene by the driver of the pickup. Plaintiffs objected to the questions as leading and also on the ground of hearsay. The record does not show clearly whether the hearsay objection was sustained. The judge instructed counsel not to lead the witness and suggested that he "repropound the question to him and get it clearer." Counsel's last attempt to elicit the testimony from the witness on the stand was leading, and the objection on that ground was sustained. The examination then proceeded on other matters and the witness was excused. Later, before defendants' closed their case, they offered the following from Horn's deposition:
Plaintiff's counsel objected on the grounds that the testimony did not meet the res gestae test, that the answer was not responsive, and that the offer was an attempt to impeach defendants' own witness. The court then denied defendants' offer of the deposition testimony.
We conclude that the testimony was within the hearsay exception relating to spontaneous declarations made under the influence of an exciting event, as formulated by the supreme court in Truck Insurance Exchange v. Michling, 364 S.W.2d 172, 173-75 (Tex.1963). Plaintiffs contend that the requirements of the rule are not met because defendants never established the exciting event by independent proof, as required by Michling. In this connection, plaintiffs insist that the exciting event in question was the alleged collision between the light-colored pickup and the postal truck, and since this event is not established by independent evidence, the alleged res gestae statement is not admissible to prove it.
We do not take such a narrow view of the exception. The reason for requiring an exciting event is to establish trustworthiness on the theory that nervous excitement excludes reasoned reflection and indicates that the utterance is a spontaneous and sincere response to the actual sensation and perceptions already produced by the external shock. Michling, supra at 173, quoting J. Wigmore, Evidence § 1747 (3d ed. 1940). The evidence here establishes beyond question an exciting event, which may or may not have included a collision between the light-colored pickup and the postal truck. Other evidence establishes a collision involving at least three vehicles resulting in fire and serious personal injuries. Horn's testimony, as well as Stewart's, tends to show that the light-colored pickup was traveling immediately behind the postal truck. Stewart testified that the pickup either struck the postal truck or narrowly missed it by swerving suddenly to the right, and Horn testified that he saw an impact between them. Thus, if the collision between the other vehicles did not provide the requisite excitement, Horn's testimony concerning the impact between the pickup and the postal truck is sufficient independent proof to establish the necessary exciting event.
Plaintiffs also argue that defendants never made a proper offer of Horn's testimony. We agree that the court properly sustained plaintiffs' objection to the leading questions when Horn was on the stand. The deposition testimony, however, presents a different question. That testimony was independently offered at the close of defendants' evidence. In it the witness definitely related the young man's statements without any prompting by counsel. Though perhaps not admissible for impeachment, the deposition was not offered for that purpose. Contradiction of the deposition by what the witness said on the stand does not deprive the deposition of probative value because the inconsistency is a matter of credibility to be determined by the trier of the facts. St. John v. Fitzgerald, 281 S.W.2d 201, 207 (Tex.Civ.App.-Eastland 1955, no writ); Lynch Oil Co. v. Shepard, 242 S.W.2d 217, 218 (Tex.Civ.App.-Eastland 1951, writ ref'd). Consequently, we hold that the deposition testimony was admissible.
We recognize that the relevant testimony of the witness Horn in the deposition was not strictly responsive to...
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