Kansas City Southern Ry. Co. v. Carter, 9703

• Decision Date: 06 September 1989
• Docket Number: No. 9703,9703
• Citation: 778 S.W.2d 911
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. Granville CARTER, Appellee.
• Court: Texas Court of Appeals

Page 911

778 S.W.2d 911

KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. Granville CARTER, Appellee.

No. 9703.

Court of Appeals of Texas Texarkana.

Sept. 6, 1989.

Rehearing Denied Aug. 8, 1989.

Second Rehearing Denied Sept. 6, 1989.

Third Rehearing Denied Oct. 3, 1989.

William C. Gooding, Gooding & Dodson, Texarkana, for appellant.

Franklin Jones, Jr., Marshall, for appellee.

GRANT, Justice.

Kansas City Southern Railway Company (KCS) appeals an adverse judgment awarding damages to Granville Carter for personal injuries.

Carter initially brought suit against KCS and Trailer Train Corporation for injuries to his back and leg. Trailer Train Corporation was non-suited and dismissed. At the conclusion of the trial without a jury, the court made findings of fact and conclusions of law and entered judgment in favor of Carter in the sum of $673,352.01.

On appeal, KCS contends that the trial court erred in refusing to grant its motion to transfer venue based on Texas Civil Practice and Remedies Code, Sections 15.034 and 15.036, and in failing to grant its motion for new trial based on excessiveness of the damage award.

Carter sustained his injury when he stepped into a pedestal well while loading trailers onto train cars at the Mossville Yard near Lake Charles, Louisiana. Carter was an employee of Kansas City Southern Transport Company, a separate entity from the defendant, which had contracted with the railroad to load and unload trailers from piggyback flatbed cars. The trial court found Carter to be an invitee.

KCS urges that the trial court erred in refusing to grant its motion to transfer venue, as well as its motion for new trial, based on the contention that venue should have been established under Section 15.034 instead of Section 15.036 of the Texas Civil Practice and Remedies Code. The issue is whether Section 15.034 ¹ is permissive or mandatory. If Section 15.034 is mandatory, the trial court erred in allowing Carter to establish venue under Section 15.036. In the cases of Southern Pacific Transportation Co. v. Harlow, 729 S.W.2d 946 (Tex.App.--Corpus Christi 1987), writ denied, 745 S.W.2d 320 (Tex.1988) and Burlington Northern Railroad Co. v. Harvey, 717 S.W.2d 371 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.), both courts determined that Section 15.034 was permissive. These opinions discuss in detail the legislative history and the bases for concluding the section to be permissive. We adopt the reasoning and references in those opinions and find Section 15.034 to be permissive.

Next, KCS contends that the trial court erred in not changing venue even if Section 15.036 was applicable, because Carter failed to prove that KCS extended or operated in Harrison County as required by that section. ²

KCS filed a motion to transfer venue, supported by affidavits from the vice-president of personnel for KCS, the assistant controller for KCS, the tax commissioner of KCS, and superintendents for KCS and Louisiana & Arkansas Railway (L & A Railway). The affiants specifically deny that KCS railroad extends or operates through or into Harrison County, that KCS has an agent in Harrison County, and that KCS exercises, supervises, directs, or controls any of the train operating personnel of L & A Railway, which does operate in Harrison County.

Carter filed a response supported by sworn exhibits showing that KCS admitted in answer to request for admissions that some of its engines passed over railroad tracks located in Harrison County.

The response is also supported by affidavits sworn to by Franklin Jones, Jr. and Ronald Snider. The affiants swore personal knowledge of matters in other lawsuits involving KCS. Carter attempts to show that in a case styled Tommy Hicks, Jr. v. Kansas City Southern Railway Company, KCS entered into a compromise settlement and indemnity agreement reciting that a "train owned and operated by the Defendant, Kansas City Southern Railway Company, ran into a railroad car which Plaintiff occupied" and further that the accident in question occurred at the Whelan Woodyard between Marshall, Texas, and Shreveport, Louisiana, and that the ultimate destination of the train causing the accident was Greenville, Texas.

KCS correctly states that Rule 408 of the Texas Rules of Civil Evidence prohibits the admission of evidence of compromise and offers to compromise. This rule provides an exception when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or party. These exceptions existed in case law prior to the adoption of the Texas Rules of Civil Evidence. This exception is for impeachment purposes to show a motive for the testimony offered. Robertson Tank Lines v. Watson, 491 S.W.2d 706 (Tex.Civ.App.--Beaumont 1973, writ ref'd n.r.e.). The evidence was not offered for impeachment purposes in the present case.

Carter takes the position that he is not seeking to show that KCS was liable in the prior suit, but only to show that KCS owned and operated the train involved in that suit. The ownership and operation of the train were essential elements in determining liability, and the compromise settlement agreement could not be used for that purpose. Therefore, the trial court should have excluded this document from its consideration.

Next, Ronald Snider's affidavit shows that he had received correspondence and a check from the general claims manager of KCS acknowledging liability and paying for damages caused by KCS to Haughton Timber Company which occurred in Harrison County. Again, to determine admissibility, we must determine the applicability of Rule 408 of the Texas Rules of Civil Evidence in regard to compromise and offers to compromise. The specific language of the rule requires that there be a compromise or an attempt to compromise a claim which was disputed as to either validity or amount. We shall not quote all of the relevant correspondence, but the following is an excerpt from a letter signed by Mike Thibodeaux, Claim Agent, on The Kansas City Southern Railway Company stationery:

From our conversation of today, please let this letter serve as notice that The Kansas City Southern Railroad Company has agreed to reimburse The Haughton Timber Company for the loss of a Hyster Challenger H225H Pulpwood Special.

....

The Kansas City Southern Railroad Company regrets this most unfortunate accident and wishes to see that the Haughton Timber Company recovers its losses.

A later letter from Paul Gardner, General Claim Agent contains a paragraph stating:

This agreement letter along with all work performed and payments made to Haughton Timber Company does not constitute admission of liability by the Kansas City Southern Railway Company, and should not be construed as such, in respect to all claims made by any party for the derailment on November 16, 1983.

The evidence is such that the trial judge could have concluded that the claim was not disputed as to validity or amount, and thus was not excludable under Rule 408. See, Robertson Tank Lines v. Watson, 491 S.W.2d at 709.

KCS correctly contends that Rule 87(3) of the Texas Rules of Civil Procedure requires that affidavits be made on personal knowledge setting forth facts that would be admissible in evidence. KCS objected at the trial on the basis that Ronald Snider had no personal knowledge because the letters were not to or from Snider. Snider swore in his affidavit that he was the sole shareholder and president of Haughton Timber Company and that he had personal knowledge of all the facts set forth in the affidavit which included references to the correspondence, letter agreements, and checks issued to Haughton Timber Company regarding reimbursement for the train accident at the Whelan Woodyard. This was sufficient to show personal knowledge.

Next, according to the affidavit of Jones, KCS's attorney stipulated in a case styled Benny K. Chaffin v. Kansas City Southern Railroad that KCS was the employer of Benny Chaffin. According to the affidavit of Jones, Chaffin was working on a line of tracks which ran from Shreveport, Louisiana, to Greenville, Texas, and which passed through Harrison County. This stipulation from another lawsuit is admissible as an admission by a party-opponent under Rule 801(e)(2)(D) of the Texas Rules of Civil Evidence.

In accordance with Rule 87(2) of the Texas Rules of Civil Procedure, Carter, as plaintiff, had the burden of proof to maintain venue in the county of suit. When a venue fact is specifically denied, the party pleading the venue fact must make prima facie proof of that venue fact by means of affidavits and other duly proved attachments to the affidavits. Tex.R.Civ.P. 87(3). ³ Rule 87(3)(a) provides that prima facie proof is made "when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading." Pursuant to Rule 87(3)(c), the trial court was required to consider only the affidavits offered by Carter to determine if prima facie proof had been made, and if so, the trial court was required by that section not to transfer the case. This would seem inconsistent with Rule 87(3)(b), which requires that the trial court is to determine the motion to transfer venue on the basis of the pleadings, any stipulations made by and between the parties, and such affidavits and attachments as may be filed by the parties. However, the party seeking the change of venue must also file affidavits establishing prima facie proof that the county to which transfer is sought is the county of proper venue. This would explain the need for all parties to file affidavits.

A problem in the present venue procedure is that Section 15.064 of the Civil Practice and Remedies Code provides that the appellate court shall consider the entire record,...