McCarty v. Gappelberg

• Decision Date: 26 November 1954
• Docket Number: No. 15559,15559
• Parties: J. T. McCARTY, Appellant, v. Gus GAPPELBERG, Appellee.
• Court: Texas Court of Appeals

Page 943

273 S.W.2d 943

46 A.L.R.2d 93

J. T. McCARTY, Appellant, v. Gus GAPPELBERG, Appellee.

No. 15559.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 26, 1954.

Rehearing Denied Dec. 31, 1954.

Caldwell, Baker & Jordan, and Russell M. Baker, Dallas, for appellant.

Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellee.

MASSEY, Chief Justice.

From an adverse judgment in a personal injury case, the plaintiff appealed. A takenothing judgment was returned upon a jury verdict convicting the plaintiff of contributory negligence.

Judgment reversed and remanded.

The question posed by this appeal is whether proof is admissible to show a history of intemperate habits on the part of a plaintiff in the absence of any competent evidence raising an issue as to whether he was intoxicated at the time of the occurrence of the accident in which he sustained injuries, and/or in the absence of competent evidence raising an issue as to whether his injuries and their results were affected by such prior intemperate habits.

We believe that the law is well settled to the effect that in so far as such character of evidence is concerned, as it relates to the occurrence of the accident, it may not be received where there is no dispute as to the injured person's condition of sobriety at the time of his accident. In other words, if he admits that he was intoxicated at the time of his accident, the defendant could not introduce evidence bearing upon his antecedent intemperate habits just as could not be done if he was indisputely sober at the time. Evidence bearing upon the plaintiff's antecedent intemperate habits is generally inadmissible in the absence of additional proof, by way of connecting facts or circumstances, that such habits have a relevancy bearing upon such a person's physical condition at the time of his accident. 61 C.J.S., Motor Vehicles, § 516, sub. (2), Intoxication, page 250; 17 Tex.Jur., 'Evidence', p. 412, sec. 147, 'Intoxication'; Texas Midland R. Co. v. Wiggins, Tex.Civ.App.Dallas 1913, 161 S.W. 445, error refused; Tripp v. Watson, Tex.Civ.App.Fort Worth 1950, 235 S.W.2d 677, writ refused, n. r. e.; Texas & N. O. R. Co. v. Diaz, Tex.Civ.App.Beaumont 1921, 234 S.W. 919, error dismissed; Galveston, H. & S. A. Ry. Co. v. Davis, 1898, 92 Tex. 372, 48 S.W. 570; Mason v. Missouri, K. & T. Ry. Co. of Texas, Tex.Civ.App.Dallas 1912, 151 S.W. 350; Browne v. Bachman, 1903, 31 Tex.Civ.App. 430, 72 S.W. 622; Traders & General Ins. Co. v. Boysen, Tex.Civ.App.Beaumont 1939, 123 S.W.2d 1016, error dismissed, judgment correct.

We believe that the law is well settled that such character of evidence may be received where an issue of fact is made as to whether such a plaintiff was intoxicated at the time of his accident. In other words, if he or other witnesses testify that he was sober at the time of the accident, while other witnesses testify that he was in a state of intoxication, then the defendant would be entitled to introduce evidence showing that the plaintiff was habitually intoxicated, or a drunkard. The evidence of antecedent intemperate habits would not be direct evidence upon the actual issue (viz.: was plaintiff intoxicated at the time he was injured?), but would be evidence tending to substantiate the defendant's other proof bearing upon the plaintiff's intoxication at the material time of his accident by way of corroboration. 17 Tex.Jur., 'Evidence', p. 412, sec. 147, 'Intoxication', and p. 416, sec. 149, 'Habit'; McCormick and Ray, Texas Law of Evidence, p. 881, sec. 685, 'Intoxication'; Robinson v. Lowell, Tex.Civ.App.Galveston 1951, 238 S.W.2d 294, writ refused, n. r. e., and authorities therein cited.

In the instant case the plaintiff was a pedestrian and was struck by the automobile of the defendant as he crossed a steet in the 'crosswalk'. Evidence was permitted of introduction over the strenuous objections of the plaintiff relating to his antecedent history of intemperate habits, including arrests and convictions for drunkenness. Indeed, the state of the record clearly demonstrates that the jury who heard the evidence in the case was adequately informed that plaintiff, prior to the date of his accident, was frequently found in a drunken condition in public places. The plaintiff, through his counsel, adequately protected himself for appellate purposes upon his objections to the admissibility of this testimony. All of plaintiff's own testimony was to the effect that he was in a state of sobriety on the evening of his accident. Defendant offered the witness Harley Eugene Myers, the first-aid man on the ambulance which took plaintiff from the scene of the accident to the hospital. Questions asked and answers elicited from this witness on direct examination included the following:

'Q. Did you smell anything on his Breath? A. I didn't particularly notice it then. In the ambulance I smalled something.

'Q. What did you smell? A. Well, it appeared to be alcohol of some kind. I couldn't say what it was.

'Q. Whiskey or beer or wine or something, is that it? A. Well, it could be something.

'Q. You had smelled alcohol before, had you not? A. Yes, sir.

'Q. During the course of your ambulance work, you have had occasion to pick up quite a few people who have smelled of alcohol, have you not? A. That is right.

'Q. In other words, you are familiar with the smell of alcohol? A. Yes, sir.

'Q. You say you could smell alcohol? A. The ambulance was a pretty close place in there, I had never met the man before or anything, but I did smell alcohol in the ambulance.

'Q. What are your duties when you get in the ambulance with the patient? A. To stop all of the bleeding and help him in any way that I can.

'Q. You are pertty close to him? A. Yes.

'Q. And you smelled alcohol at that time? A. Yes.

'Q. You smelled alcohol all the time until you got to Parkland Hospital? A. Well, I was working off and on on the man and naturally you are going to be working on him, you are going to be a little closer to him than you are the other time.

'Q. During that time you could smell beer, whiskey, or alcohol, some kind of intoxicant? A. I wouldn't say that it was, because I don't know.

'Q. Some kind of intoxicant? A. I would say I smelled some kind of alcohol.'

It is defendant's contention that the aforesaid testimony constituted direct testimony that plaintiff was intoxicated at the time of the accident, and that therefore the defendant's evidence bearing upon plaintiff's antecedent intemperate habits was admissible as tending to substantiate the witness Myers' testimony. But it appears to us that Mr. Myers pointedly avoided testifying that the plaintiff was intoxicated, or that he had alcohol on his breath. Direct questions were asked other witnesses as to whether plaintiff had alcohol on on his breath and testimony was received to the effect that such witnesses did not detect any such odor. It was also established by the evidence that a fluid was carried in the ambulance which contained alcohol and which was used in connection with patients transported by the ambulance. There was no evidence as to whether or not the container for this fluid was capped, no evidence as to whether it was used upon the plaintiff as he was being transported in the ambulance, and no evidence bearing upon any use of it on any patient or partients transported in the ambulance earlier in the day. Under these circumstances, we believe that Mr. Myers' testimony fell short of amounting to proof of probative force and effect that the plaintiff was intoxicated upon the material occasion. Therefore, in so far as the facts of the occurrence of the accident are concerned, the defendant did not establish the predicate which was necessary to be established as a predicate for the admission of any testimony relating to the plaintiff's antecedent intemperate habits.

As applied to the instant case, we see no merit in the defendant's contention that the same character of evidence is admissible upon the measure of damages and in mitigation of the damages because a plaintiff who is habitually intoxicated, or a drunkard, would not have as great an earning capacity as one who was of sober habits or would not have as much life expectancy. We are not convinced that the fact that a person is of intemperate habits is, in itself and of itself, evidence tending to establish less ability to earn money or a diminished earning capacity. Neither are we convinced that such a fact is, in itself and of itself, evidence tending to establish a reduced life expectancy.

There is no question but what (in a suit for damages) testimony establishing that a person who has been injured or killed was of sober habits may be admitted as tening to substantiate the damages sought for lost earnings, etc. Texas Mexican Ry. Co. v. Douglass, 1889, 73 Tex. 325, 11 S.W. 333; Beaumont Traction Co. v. Dilworth, Tex.Civ.App. 1906, 94 S.W. 352; Ft. Worth & D C. Ry. Co. v. Stalcup, Tex.Civ.App. Amarillo 1914, 167 S.W. 279, error refused. We believe, however, that such evidence is not admissible to establish such damages. Such evidence, in itself and of itself, would not establish damagers. Furthermore, it does not necessarily follow that the converse would be true, that a defendant might show that the plaintiff had intemperate habits or was addicated to intoxication as evidence mitigating the plaintiff's damages. We believe that evidence of this character should be excluded in the absence of some issue of fact otherwise raised and bearing upon the damages, in substantiation of which the plaintiff's antecedent habits might become admissible. Houston, E. & W. T. Ry. Co. v. McCarty, 1905, 40 Tex.Civ.App. 364, 89 S.W. 805; St. Louis & S. F. R. Co. v. Smith, 1904, 34 Tex.Civ.App. 612, 79 S.W. 340, error refused; 14 Texas Digest, Damages, k169.

In the instant case there is no contention that the plaintiff's physical...