J. Weingarten, Inc. v. Tripplett

• Decision Date: 26 November 1975
• Docket Number: No. 7733,7733
• Citation: 530 S.W.2d 653
• Court: Texas Court of Appeals
• Parties: J. WEINGARTEN, INC., Appellant, v. Betty Jean TRIPPLETT, Appellee.

Page 653

530 S.W.2d 653

J. WEINGARTEN, INC., Appellant, v. Betty Jean TRIPPLETT, Appellee.

No. 7733.

Court of Civil Appeals of Texas Beaumont.

Nov. 26, 1975.

Rehearing Denied Dec. 18, 1975.

Benckenstein & Norvell, Beaumont, for appellant.

James W. Mehaffy, Jr., Beaumont, for appellee.

KEITH, Justice.

Our opinions of October 16, 1975, are hereby withdrawn and the following is substituted in lieu thereof.

This is the second appeal in a slip and fall case, this court, in an unpublished opinion, having reversed the judgment of the trial court upon the first appeal. Upon the second trial the pleadings were identical and the evidence substantially the same except for the testimony of one expert witness offered by the plaintiff.

Each special issue necessary for plaintiff's recovery was answered in her favor, and the judgment followed the verdict. Defendant assails the judgment with many points of error including no evidence, insufficient evidence, and great weight and preponderance of the evidence points.

Plaintiff testified that it had been raining hard with a blowing rain before she entered defendant's store. She said that the doors to the store did not close completely, a condition which she had observed several weeks earlier. She fell upon the floor about five feet inside the doorway. After her fall she looked around to see what may have caused her fall and described the substance on the floor in this manner:

'It was a sort of film of dust like on the floor, sort of like as if you would paint or a light film and it wasn't completely dry, solid, you know, and after I fell when I got up I noticed my dress had some dust on it. And I looked around and there had been quite a bit of walking in a large area.'

She described the area covered by the substance as being 'eight or ten feet' all around her, and she estimated that there were fifty or so footprints in the substance.

In our earlier opinion, this court, following the well established substantive law governing such cases, held that the evidence was legally insufficient to show that defendant or its agents had placed the substance on the floor; that the defendant knew that the foreign substance was on the floor or negligently failed to remove it; or that the substance had been upon the floor for such a period of time that it would have been discovered had the defendant exercised ordinary care.

Upon this trial plaintiff offered Dr. Swiki A. Anderson as her expert witness seeking thereby to supply the missing element of time pointed out in our prior opinion. Dr. Anderson, a registered professional engineer and an assistant professor of Texas A. & M. University, testified that his specialty was fluid flow and heat transfer; or, as he put it: '(T)he evaporation of water is in my domain of interest.' He answered a lengthy, involved, and convoluted hypothetical question--interspersed with frequent objections--that in his opinion the water had been upon the floor for 28.8 minutes.

The jury found in answer to Special Issue No. 4 that the film of mud had been on the floor for such period of time that in the exercise of ordinary care the defendant should have discovered it and removed it; that such failure to remove the film of mud was negligence proximately causing the accident.

Defendant contends that plaintiff's counsel included many assumptions of fact in the hypothetical question which were not supported by the facts in the record. We set out in parallel columns some of the assumptions made; and, in the other column, we set out information from the official Local Climatological Data form completed by the officials in charge of the weather bureau at Jefferson County Airport some five or ten miles from the store in question.

                             Assumption                         Climatological Data
                ----------------------------------------------------------------------------
                1. 3.02 inches of rain.                1. There was 3.02 inches
                                                          of rain at the airport
                                                          during the 24-hour
                                                          period of the day in
                                                          question
                2. Dry bulb temperature: 74 degrees    2. Dry bulb temperature: 74 degrees
                3.  Wet bulb temperature: 72 degrees    3. Dry bulb temperature: 73 degrees
                4.  Relative humidity: 93%              4. Relative humidity: 94%
                5.  Dew point: 71.4 degrees             5. Dew point: 72 degrees
                

Dr. Anderson also assumed that the water thickness where plaintiff fell was one-eighth of an inch; that the film had a diameter of ten feet; that the air velocity in the store was 150 feet per minute; that the floor was completely level and flat. The radius of the area was compatible with plaintiff's own testimony and the level floor assumption was a reasonable inference from all of the testimony in the record. Dr. Anderson explained that the one-eighth thickness of the water was caused by 'surface tension effect . . . (of water) which tends to pull the molecules together forming a cohesive force.' An explanation, in scientific language, was made as to the surface wind velocity in the store.

Defendant's objections at the trial were clear and specific and were followed by a motion to strike the testimony. Upon appeal, defendant's first six points of error complain of the admission of the conclusion tending to establish that the film had been on the floor for 28.8 minutes was based upon assumed facts not shown in the record.

Before turning to a consideration of defendant's points of error challenging the conclusion reached by Dr. Anderson, it is well to restate some of the rules governing the receipt of opinion evidence from an expert. Thus we recognize the rule that considerable latitude is permitted in the propounding of hypothetical questions to expert witnesses, and the form and wording of the questions is left largely to the discretion of the trial court. Foreman v. Texas Employers' Ins. Ass'n, 150 Tex. 468, 241 S.W.2d 977, 980 (1951). It is certainly true that '(h)ypothetical questions should be restricted to the facts in evidence; otherwise, they will be misleading and confusing and therefore prejudicial.' Texas Employers' Ins. Ass'n v. Fitzgerald, 296 S.W. 509, 511 (Tex.Comm'n App.1927, holding approved). These words were adopted, without benefit of quotation marks, in Gulf Oil Corporation v. Walker, 288 S.W.2d 173, 186 (Tex.Civ.App.--Beaumont 1956, no writ). See, generally, Sabelli v. Security Insurance Company of New Haven, 372 S.W.2d 348, 351 (Tex.Civ.App.--Austin 1963, writ ref'd n.r.e.); and Polasek v. Quinius, 438 S.W.2d 828, 835 (Tex.Civ.App.--Austin 1969, writ ref'd n.r.e.).

We must also recognize the rule stated in Aetna Casualty & Surety Company v Scruggs, 413 S.W.2d 416, 422 (Tex.Civ.App.--Corpus Christi 1967, no writ), where the authorities supporting this statement are set out at length:

'It is not necessary that the hypothetical question embrace every fact in evidence; it is within the province of counsel to assume, within the limits of the evidence, any state of facts which he claims the evidence justifies and which enables the witness to formulate an intelligent answer and have the opinion of the expert upon the facts assumed.'

At the time the hypothetical question was propounded to the expert, the weather bureau report was not in evidence, and the trial court very properly overruled the objection with this comment, 'provided counsel properly connects these matters up. If not, the Court will reconsider your objection.' There then followed an exchange between respective parties as to whether Dr. Anderson was referring to data taken at 5 p.m. or 6 p.m. Plaintiff's counsel subsequently introduced the weather bureau chart and his examination of the witness, as can best be determined from the record, was based on the 6 p.m. data which has been set out earlier in the opinion. We are permitted to take judicial knowledge of a weather report for a particular day. Texas & P. Ry. Co. v. Greene, 291 S.W. 929 (Tex.Civ.App.--Fort Worth 1927), aff'd 299 S.W. 639 (Tex.Comm'n App.1927). The weather bureau records information every three hours; i.e., at 3, 6, 9 o'clock, etc. We thus note that there is no reference in the chart of Any data allegedly taken at 5 p.m.

Upon cross-examination, defendant's counsel elicited from Dr. Anderson the conclusion that if his figures on the climatological data were different, his conclusions as to the amount of time that the water had been on the floor would vary. He stated that the conditions immediately inside the door of the store would be the same, or at most minimally different, as the conditions outside. Plaintiff's counsel then inquired as to how much difference he was talking about in using defendant's calculations of any variance in conditions or if there were a few degrees difference in his figures.

'Q. How much difference are we talking about?

'A. Oh, plus or minus twenty per cent maybe, no more.

'Q. Twenty per cent would be plus or minus.

'A. Plus or minus six minutes.'

We are of the opinion that the trial court did not err in overruling defendant's motion to strike Dr. Anderson's testimony. An expert witness is not confined to opinions on facts within his own knowledge. 2 C. McCormick & R. Ray, Texas Law on Evidence, § 1402 at 237 (1956). In Shuffield v. Taylor, 125 Tex. 601, 83 S.W.2d 955, 960 (1935), it was said that '(a) question is not necessarily improper because it includes only a part of the facts in evidence, provided it embraces enough of them to enable the witness to formulate an intelligent opinion.' This proposition has more recently been stated in the following language:

'It is not necessary to the propriety of such a question that it include a reference to all of the relevant facts in evidence Nor that it be confined to facts proven with mathematical certainty. It may include inferences reasonably drawn from other facts proved and...