Logan v. Grady

• Decision Date: 02 June 1972
• Docket Number: No. 17318,17318
• Citation: 482 S.W.2d 313
• Parties: R. A. LOGAN et ux., Appellants, v. William S. GRADY, Temporary Administrator of Estate of Elizabeth M . GRADY, et al., Appellees.
• Court: Texas Court of Appeals

Page 313

482 S.W.2d 313

R. A. LOGAN et ux., Appellants, v. William S. GRADY, Temporary Administrator of Estate of Elizabeth M . GRADY, et al., Appellees.

No. 17318.

Court of Civil Appeals of Texas,

Fort Worth.

June 2, 1972.

Rehearing Denied July 7, 1972.

Shannon, Gracey, Ratliff & Miller, William J. Fleniken, Jr., Miteff & Evans, and Meto Miteff, Fort Worth, for appellants.

Cantey, Hanger, Gooch, Cravens & Munn, and Howard G. Barker, Fort Worth, for appellee, William S. Grady.

Thompson, Knight, Simmons & Bullion, M. Lawrence Hicks, Jr., and David R. Noteware, Dallas, for appellee, Dorian King.

OPINION

BREWSTER, Justice.

This is a suit for damages for personal injuries sustained by Mrs. Peggy Jean Logan, one of the plaintiffs, in a collision between her Pontiac automobile and a Dodge automobile being then driven by one of the defendants, Dorian King. William S. Grady, Temporary Administrator of the Estate of Elizabeth M. Grady, deceased, was also a defendant in the case. Elizabeth M. Grady was an occupant of the car being driven by Mrs. King. She was killed in the wreck. On receiving a jury verdict that found both drivers guilty of negligence that proximately caused the collision the trial court rendered judgment in favor of both defendants providing that plaintiffs take nothing by their suit. This is an appeal by the plaintiffs, Mr. and Mrs. R. A. Logan, from that decree.

When suit was instituted there was a question as to whether Dorian King or Elizabeth Grady was driving the Dodge at the time of the wreck. As the trial progressed the parties stipulated that Dorian King was the driver, so after that there was apparently no further effort to impose liability for the damages against the Elizabeth Grady Estate.

When this appeal was argued the appellants advised this Court that the trial court's judgment in favor of defendant, William S. Grady, as Temporary Administrator of the Estate of Elizabeth M. Grady, deceased, was correct and that that part of the decree should be affirmed.

We therefore, affirm that part of the trial court's decree that provides that the plaintiffs take nothing by their suit as against William S. Grady, Temporary Administrator of the Estate of Elizabeth M. Grady, deceased.

Some undisputed facts in this case were: On April 8, 1966, Dorian King was driving a Dodge Dart south on Farm Road 718 in Wise County just south of the town of Newark; Elizabeth Grady also occupied that car at the time; Mrs. Peggy Jean Logan was the only occupant of her Pontiac car that approached Newark on this occasion on this same road going north; when she reached the crest of a hill Mrs. Logan started around a Ford auto that was traveling in front of her at a speed of from 50 to 55 miles per hour; she speeded up and passed around the Ford and got back into her correct lane of traffic and shortly thereafter the Dodge Dart coming from the other direction and going south went partly off onto the right shoulder and then cut diagonally across the Farm-to-market Road No. 718; when the Dodge got into the northbound lane in which Mrs. Logan was traveling the Logan and King cars collided head-on resulting in the death of Mrs. Grady and serious injuries to the other occupants of both cars.

A witness by the mame of Charles Bills was on this occasion traveling on the same road behind Mrs. Logan and had caught up with Mrs. Logan's car and the Ford car and had followed them for about two miles before Mrs. Logan passed the Ford and he was a witness to the collision and to a part of the proceedings leading up to it.

The wreck occurred at approximately 5:45 P.M. and the two investigating officers arrived at the scene at about 6:45 P.M. They were highway patrolmen Norman Morton and one Sanders. They investigated the wreck and not very long after they arrived at the scene Officer Sanders gave the witness, Bills, a piece of paper and Bills, at Sander's request, in his own handwriting, wrote out a statement and signed it and it is identified in the evidence as defendant King's Exhibit No. 1, and such statement contains the following: 'My location when accident happened was behind all 3 cars 200 yards. (Please tell in your own words just what you saw)

'I was traveling from Ft. Worth to Newark. I was at the top of the hill when the accident happened, traveling west. The Ford was being passed by the Pontiac and the Pontiac did not seem to have enough room to pass the Ford safely because of the oncoming Dodge Dart. The Dart saw that the Pontiac did not have room to pass safely and slowed and pulled off onto the soft shoulder. The Dart then turned sideways (front end towards the road). At this time the Pontiac was traveling very fast and was back in its On lane. The Dart then turned back straight and immediately the Pontiac and the Dart hit each other. The Ford barely got stopped. It stopped within 20 feet I believe. See sketches on back of sheet.' (Emphasis ours.)

Patrolman Sanders did not testify in this case. Patrolman Morton did testify. He said that this statement was written out and signed by the witness, Bills, and given to Sanders by Bills, and made a part of th Highway Department's file relating to that wreck. Morton did not recall talking to Bills. He said the statement was a part of the official investigation file on this wreck.

The plaintiffs in their first three points urged on this appeal contend that: (1) The court erred in letting Patrolman Morton on examination by defense counsel testify as to the contents of the written statement that Bills wrote out for Officer Sanders because the testimony was hearsay, came under no exception to the hearsay rule and it contained conclusions and opinions; (2) the court erred in admitting in evidence this written statement of the witness, Bills, because it was hearsay, did not come under an exception to that rule, and contained opinions and conclusions; and (3) the court erred in denying plaintiffs' motion to withdraw from the evidence the Bills' statement and to strike from the evidence the testimony of Officer Morton concerning the contents of the Bills' statement, and to instruct the jury not to consider any of such matters for any purpose.

The defendants' (appellees') counsel persuaded the trial court to admit Bills' statement into evidence on the theory that such statement was a part of the official investigation file of the Texas Highway Department on this particular wreck and that it was therefore admissible as a business record by virtue of Art. 3737e, Vernon's Ann.Civ.St., and that it was also admissible as a part of the res gestae.

The plaintiffs objected to the statement being admitted on the grounds that it was hearsay.

There is no question but what this statement given by the witness, Bills, was pure hearsay evidence and that it was inadmissible unless it came under the res gestae exception to the hearsay rule or under the statutory exception to the hearsay rule that was created by Art. 3737e, V.A.C.S. Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339 (1944); Allen v. Williams 380 S.W.2d 718 (Waco, Tex.Civ.App., 1964, no writ hist.); and Ford Motor Company v. Mathis, 322 F.2d 267 (5th Cir. 1963).

Our courts hold that Art. 3737e, V.A.C.S., does create a valid exception to the hearsay rule. Travis Life Insurance Company v. Rodriguez,326 S.W.2d 256 (Austin, Tex.Civ.App., 1959, affirmed in 160 Tex. 182, 328 S.W.2d 434).

The following is from Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.Sup., 1962) at page 301: 'One seeking to have hearsay declarations of a witness admitted as an exception to the general rule must clearly show that they are within the exception. It is said in the Aetna v. Eastman case (Aetna Ins. Co. v. Eastman, 95 Tex . 34, 64 S.W. 863), supra:

"The declarations offered in evidence in such cases are at best hearsay, and are inadmissible under the general rule; and we are of the opinion that, if the declarations are sought to be brought within the exception, the grounds which take it out of the rule ought clearly to appear." See also Edwards v. Montgomery Ward & Co ., 270 S.W.2d 432 (Beaumont, Tex.Civ.App., 1954, ref., n.r.e.).

Was the Bills' statement admissible as coming within the business record exception created by Art. 3737e?

The mere fact that the Bills' statement was a part of the Highway Department's file on the wreck did not make it admissible in evidence. In order for an exhibit to become admissible as a business record under Art. 3737e it is necessary that the one offering it lay a proper predicate for its admission by proving the existence of each of the essential elements set out in the statute. Unless each of the elements designated in the statute is present, then the statutory exception to the hearsay rule does not exist. Skillern & Sons, Inc. v. Rosen, supra; Trans-Cold Express, Inc. v. Hardin, 415 S.W.2d 431 (Austin, Tex.Civ.App., 1967, no writ hist.); and Purvis v. Johnson, 430 S.W.2d 226 (San Antonio, Tex.Civ.App., 1968, no writ hist.).

Under Section 1(b) of Art. 3737e some employee or representative (of the Highway Department) who either made the record or transmitted the information therein contained to another to record must have had personal knowledge of the act, event or condition, reflected by such record, in order for such record to be admissible under the business records exception to the hearsay rule. See Skillern & Sons, Inc. v. Rosen, supra.

The necessary element created by Sec. 1(b) of the statute was clearly not present in this case.

We hold that the hearsay statement of the witness, Bills, was not admissible as being a business record under Art. 3737e because the essential element provided for by Sec. 1(b) of Art. 3737e was not proved to exist.

Was the Bills' statement admissible as being a part of the res gestae?

Did the defendants clearly show that the Bills' statement came within the res gestae exception to the hearsay rule, as they were required to do in order for it to become...