Kaufman Northwest, Inc. v. Bi-Stone Fuel Co.

• Decision Date: 23 October 1975
• Docket Number: No. 858,BI-STONE,858
• Citation: 529 S.W.2d 281
• Parties: KAUFMAN NORTHWEST, INC., Appellant, v.FUEL COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 281

529 S.W.2d 281

KAUFMAN NORTHWEST, INC., Appellant, v. BI-STONE FUEL COMPANY, Appellee.

No. 858.

Court of Civil Appeals of Texas Tyler.

Oct. 23, 1975.

Rehearing Denied Nov. 13, 1975.

Kurt A. Philipps, Morgan, Shumpert, Huff, Philipps, Mosley & Co., Kaufman, for appellant.

J. Dan Bohannan, Burford, Ryburn & Ford, Wayne Pearson, Dallas, for appellee.

MOORE, Justice.

This is an eminent domain proceeding. Appellee, Bi-Stone Fuel Co., instituted condemnation proceedings against appellant Kaufman Northwest, Inc., for the purpose of condemning a pipeline easement seventy feet in width across a 536-acre tract of land owned by Kaufman Northwest. The land taken consisted of 8.75 acres and was condemned for the purpose of constructing a 20-inch natural gas pipeline. Trial was before a jury and resulted in a verdict awarding Kaufman Northwest the sum of $5,250.00 for the 8.75 acres taken and $5,274.10 for damages to the remainder. The trial court entered judgment on the verdict and Kaufman Northwest perfected this appeal.

We affirm.

The appellant, defendant below, by its first point contends that the trial court erred in admitting in evidence Plaintiff's Exhibit No. 2 which consisted of an aerial photograph of appellant's tract of land with notations denoting the types of soil existing on the 536-acre tract in question. The exhibit was prepared by the U.S. Department of Agriculture, Soil Conservation Service of Kaufman County, Texas. Appellee offered the exhibit in evidence as a business record under Art. 3737e, V.A.T.S. Appellant's sole objection to its admission was on the ground that a proper predicate was not laid for admission as a business record.

Article 3737e provides:

'Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:

(a) It was made in the regular course of business;

(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;

(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.

'Sec. 2. The identity and mode of preparation of the memorandum or record in accordance with the provisions of paragraph one (1) may be proved by the testimony of the entrant, custodian or other qualified witness even though he may not have personal knowledge as to the various items or contents of such memorandum or record. Such lack of personal knowledge may be shown to affect the weight and credibility of the memorandum or record but shall not affect its admissibility.'

Section 4 of 3737e defines the term 'business' as to include 'any and every kind of regular organized activity whether conducted for profit or not.' Clearly the Soil Conservation Service is a 'business' within the meaning of the statute. Thus, to establish a proper predicate appellee was required to meet only the requirements of paragraphs (a), (b) and (c) in Section 1 through the testimony of a qualified witness.

Prior to offering the exhibit, appellee called as a witness, Cecil Chaney, who testified that he was an employee of the U.S. Department of Agriculture, Soil Conservation Service Kaufman County and head of the Terrell Sub-unit. He testified (1) that the Soil Conservation Service keeps and maintains aerial maps of the enture county and that such records, including plaintiff's Exhibit No. 2, are within his custody and control; (2) that aerial maps with soil notations are regularly made and kept by the Soil Conservation Service; (3) that the maps are regularly used by the Soil Conservation Service employees in developing conservation plans with landowners; (4) that the maps are kept in the regular course of the business of the Soil Conservation Service; (5) that the maps are prepared by soil scientists of the Soil Conservation Service after a first-hand investigation and soil testing of the particular tract to be mapped out; (6) that the particular map offered in evidence was made soon after the time the soil scientist investigated and soil tested appellant's land. Mr. Chaney further testified that the number '77' plotted by the soil scientist on the exhibit denotes 'Kaufman Clay, zero-to-one percent slope, frequently flooded' and the number '52' denotes 'gowan and fine sandy loam, zero-to-one percent slope, frequently flooded.' As we view the record, the foregoing testimony was sufficient to establish a proper predicate for the introduction of the instrument. We therefore hold that the trial court did not err in permitting it to be offered in evidence as a business record.

In any event, the exhibit was admissible under the provision of Article 3731a, V.A.T.S. In substance this statute provides that any written instrument which is permitted or required by law to be made, filed or kept by an officer or clerk of the United States or his deputy or employee, shall, so far as relevant, be admitted in the courts of this State as evidence of the matters stated therein. The Secretary of Agriculture is authorized to conduct surveys and research relating to soil conservation and publish the result of such surveys. 16 U.S.C.A. Secs. 590a, 590g(a), 590i (1974). There is no question that the exhibit in question was a written instrument permitted or required to be made or kept by an officer of the United States or his employee. The written report, being a United States Government report was admissible under the statute.

Appellant further contends under its first point of error that even if the exhibit amounted to a business record, it was still inadmissible because it contained opinions and conclusions of the soil scientist who made the notations. This contention was not urged at the trial and may not be urged for the first time on appeal. Houston & T.C.R. Co. v. Knapp, 51 Tex. 569, 577 (1879); Kettle v. Smircich, 415 S.W.2d 935, 938 (Tex.Civ.App.--Corpus Christi 1967, no writ); Seymour v. Texas & N.O.R. Co., 209 S.W.2d 814 (Tex.Civ.App.--El Paso 1947, writ ref'd). When the exhibit was offered in evidence, appellant objected to it only on the ground that a proper predicate was not laid. The general rule is that grounds specified by appellant in its objection at trial may not be enlared on appeal to include other grounds not asserted at trial. Bohanan v. Hans, 26 Tex. 445, 452 (1863); City of Wichita Falls v. Jones, 456 S.W.2d 148, 154 (Tex.Civ.App.--Fort Worth 1970, no writ); Texas Employers Insurance Association v. Hicks, 271 S.W.2d 460, 464 (Tex.Civ.App.--Eastland 1954, writ dism'd). Appellant's first point is overruled.

By its second point, appellant complains of the admission in evidence of appellee's Exhibit No. 5 which is nothing more than an enlarged drawing of a portion of appellee's Exhibit No. 2. It depicts those portions of appellant's tract which are classified as overflow land. This exhibit was offered in evidence in connection with testimony of the witness Osborne who testified he prepared the exhibit from an exact copy of Exhibit No. 2. He testified that Exhibit No. 5 accurately portrays that which is contained in Exhibit No. 2 and that by taking the various soil classification numbers listed by the soil scientist on Exhibit No. 2, he was able to determine what part of appellant's land was classified as overflow land. He further testified that upon taking the information found on Exhibit No. 2, he determined that approximately 150.6 acres of appellant's land were classified as overflow land. Appellant objected to the exhibit on the ground that Osborne testified he prepared Exhibit 5 from a copy of Exhibit 2 rather than the original. Appellant argues that there is nothing to show that the copy used to prepare Exhibit five was an authentic copy of Exhibit No. 2. The contention is without merit and is overruled. Prior to the time the exhibit was admitted in evidence, the witness Osborne testified the copy he used in preparing Exhibit 5 was exactly the same as Exhibit No. 2. While on the witness stand he compared the copy with the original and stated unequivocally that they were the same. There is no evidence to the contrary. Since the undisputed proof shows that Exhibit No. 5 was nothing more than an accurate enlargement of Exhibit No. 2, which was properly admitted in evidence, the trial court committed no error in permitting it to be admitted in evidence.

By its third point of error, appellant contends that the trial court erred in excluding from evidence Defendant's Exhibits Nos. 18 and 19 which were reports filed with the U.S. Department of Transportation showing leaks in appellee's pipelines in Leon and Fannin County. Appellee objected to the exhibits on the ground that there was no evidence showing that the other lines were generally similar in their important or essential characteristics to the line in question, as required by the holding in Delhi Gas Pipeline Co. v. Mangum, 507 S.W.2d 631, 635 (Tex.Civ.App.--Tyler 1974, no writ). We overrule the point.

Appellant's Exhibit No. 18 is a report filed with the Department of Transportation showing a leak occurred on one of appellee's lines in Leon County. The report shows the leak was caused by corrosion. The evidence shows several material dissimilarities in that line and the line in question. The present line was constructed with cathodic protection applied so as to prevent corrision. The pipe was inspected by the use of x-ray before installation. The thickness of the pipe was substantially greater than that of the Leon County line. The line was constructed with new pipe, whereas the Leon County line was constructed with used pipe; had no cathodic protection and was not x-ray inspected. In other respects some similarity existed. While the court's ruling is not entirely...