McInnes v. Yamaha Motor Corp., U.S.A.

• Citation: 659 S.W.2d 704
• Decision Date: 01 September 1983
• Docket Number: No. 13-82-138-CV,13-82-138-CV
• Parties: Lindsey McINNES, Appellant, v. YAMAHA MOTOR CORPORATION, U.S.A., Appellee.
• Court: Court of Appeals of Texas

Page 704

659 S.W.2d 704

Lindsey McINNES, Appellant, v. YAMAHA MOTOR CORPORATION, U.S.A., Appellee.

No. 13-82-138-CV.

Court of Appeals of Texas,

Corpus Christi.

Sept. 1, 1983.

Rehearing Denied Oct. 13, 1983.

Dante Mattioni, Philadelphia, Pa., Anthony E. Pletcher, Corpus Christi, Paul E. Knisely, Broadus Spivey, Austin, for appellant.

Kathryn Snapka, Guy Allison, Corpus Christi, for appellee.

Before NYE, C.J., and YOUNG and KENNEDY, JJ.

OPINION

KENNEDY, Justice.

Plaintiff-Appellant was injured to the extent of becoming a quadraplegic patient in a one-vehicle accident while driving a 1973 Yamaha TX 650 motorcycle. He brought suit against several defendants, the only one remaining being appellee, Yamaha Motor Corporation, U.S.A. Appellant pled negligence, strict liability, breach of warranty and Deceptive Trade Practices.

A jury below found defective design of the frame and failure of appellee to give adequate warnings or instructions, but also found that neither of such was a producing cause of the accident. The jury also found that appellant's motorcycle did not develop a "wobble" prior to the accident and that appellant failed to keep a proper lookout which was a proximate cause of the accident.

Appellant's first four points of error are evidence points, i.e., that the jury should have found that the defective frame of the motorcycle was a producing cause of the accident and that the jury should not have found that the motorcycle did not develop an uncontrolled wobble prior to the accident. Thus we are required to pass upon the sufficiency of the evidence in each of these matters.

When a factual insufficiency question is presented the appellate court is required to consider all of the evidence in deciding the question. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The case of Salazar v. Hill, 551 S.W.2d 518 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.) decided by this Court, was one involving a rear-end collision where the facts were virtually undisputed. The jury resolved all issues in favor of the appellee who had run into the rear of the other automobile. There this Court said:

"As we have noted, the jury is the trier of the facts and as such is in a better position to judge these issues than are we. The jury in this instance answered the negligence issues for the appellees.

From the facts in this case we conclude that the jury findings, attacked by appellants merely indicate that the appellants have failed to carry their burden of proving the alleged acts of negligence. Stafford v. Hardi, 464 S.W.2d 958 (Tex.Civ.App.--Dallas 1971, writ ref'd n.r.e.). And the jury's failure to find those facts (of negligence) vital to the appellants' recovery need not be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944 (Tex.Sup.1973). We hold therefore that the findings complained of are not so against the great weight and preponderance of the evidence as to be manifestly wrong."

In other words, it is not necessary for one side to negate by affirmative evidence the evidence presented by the other side. The jury is free to simply disbelieve such evidence.

We have examined the evidence in the case before us and conclude that it was not error for the jury to make the findings complained of. The first four points of error are overruled.

In points of error numbers five and six appellant complains of the introduction of evidence tending to show that appellant was intoxicated on the occasion in question. It is argued that such is not admissible absent evidence of negligent conduct. Error is also claimed in allowing the County Medical Examiner to speculate on the degree of appellant's intoxication based upon a reading of the treating physician's notes.

Evidence of two separate blood alcohol tests were introduced into evidence. One test, performed at 6:35 p.m. following the accident, which occurred between 4:45 and 5:00 p.m., showed an alcohol content of .131. An earlier test (5:30 p.m.) showed an alcohol content of .09. In addition, the notes of the treating physician, Dr. Martin, contained in his deposition, stated that appellant was "slightly intoxicated" when he was examined at approximately 8:00 p.m. The Nueces County Medical Examiner, Dr. Rupp, was called by appellee to explain and interpret this evidence. Appellant admitted that he had drunk about six beers before the accident.

Appellant's own evidence was to the effect that this was a one-vehicle accident in which appellant, for some reason, lost control of his motorcycle and went through a guardrail. Appellant contends, of course, that this was caused by a defective motorcycle. However, appellee has its own theory, i.e., the intoxication of appellant at the time in question. We reject the argument that there was no evidence of negligent conduct on plaintiff's part.

Appellant cites Dorman v. Langlinais, 592 S.W.2d 650 (Tex.Civ.App.--Beaumont 1979, no writ) as authority for the proposition that evidence of intoxication is inadmissible absent a showing that the driver's performance was erratic. In Dorman, however, the appeals court held that "[c]lose examination established that defendant handled himself 'normally' and there is no evidence of any negligent or unusual conduct caused by alcohol." Dorman involved a two car intersection collision and the question as to which driver was at fault. Our case, as noted earlier, involves a motorcycle which, for no apparent reason, left the pavement and crashed into a guardrail. This, in itself, is evidence of negligent or unusual conduct. Point of error number five is overruled.

As to the alleged error in allowing the medical examiner to speculate about intoxication from reading the treating physician's notes, such is not precisely what happened. The Medical Examiner testified that for the treating physician to make an observation that a quadraplegic was slightly intoxicated, the patient would be in the range of about 0.1% blood alcohol. This, he explained, is due to the fact that there are fewer symptoms of intoxication in a quadraplegic available to the observer since the observation of the patient would be virtually limited to speech and eye movements. The Medical Examiner then took the 0.1% figure and extrapolated it to indicate the level at the time of the accident.

We agree with appellant that Dr. Rupp should not have been permitted to state an opinion concerning the level of alcohol in the appellant's blood at the time of the accident based upon Dr. Martin's notation that appellant was "slightly intoxicated." Dr. Martin had no recollection of appellant at the time his testimony was taken. He did not state the basis for his opinion, i.e., the factors he observed which led him to his conclusion. Nor did he explain what he meant by the descriptive "slightly intoxicated." Indeed, when asked what that phrase meant, Dr. Martin responded: "It means he was slightly intoxicated."

An analogous situation is found in Associated Indemnity Corp. v. Dixon, 632 S.W.2d 833 (Tex.App.--Dallas 1982, writ ref'd n.r.e.), a workers' compensation case where one physician's testimony was based upon another physician's letters concerning the injured employee's condition. The Court held that:

"[T]hese letters were not a diagnosis of another physician upon which Dr. Daughety [the testifying physician] could base his medical opinion. They tendered no medical findings by Dr. Faust to better enable Dr. Daughety to diagnose Dixon's injury, but offered only Dr. Faust's ultimate conclusion that, within the meaning of the Texas Workers Compensation Act, Dixon was probably totally incapacitated. We hold, therefore, that the information in this letter was not information upon which a physician can rely in reaching a medical opinion. Thus, it was inadmissible for any purpose...."

632 S.W.2d at 835-6.

Given the inherent uncertainty of the term "intoxicated," especially when modified by "slightly," we believe that Dr. Rupp's opinions based thereon provide an even more extreme example than that discussed in the Dixon case.

Dr. Rupp was, however, also able to state, based upon the blood-alcohol tests performed at 6:35 p.m. and 5:30 p.m., that at the time of the accident, appellant's alcohol content would have been .05. These two test results were properly in evidence, and an opinion based thereon was admissible and of probative force. Dr. Rupp went on to say that the driving abilities of a motorcyclist with .05 alcohol content would be impaired. Given this opinion, we do not feel that the admission of the opinion predicated upon Dr. Martin's observation constitutes reversible error. The point is overruled.

In point of error number seven, complaint is made concerning the trial court's ruling that evidence of complaints made to Yamaha of front-end wobbles that resulted in injuries when the occurrences happened at speeds in excess of 40 m.p.h. would be admitted for the limited purpose of showing notice to Yamaha of the propensity of the TX 650 to so act. Counsel for Yamaha reviewed with the witness Martinez sixty-one warranty complaints concerning wobbling. In so doing, the witness stated, when it was known, the speed at which the wobble occurred. Many of these concerned incidents in excess of 40 m.p.h. Subsequently, counsel for appellant sought to elicit testimony from the witness Gardlin concerning reports to Yamaha of injuries. The objection was made that incidents occurring at speeds in excess of 40 m.p.h. were not sufficiently similar to appellant's accident to be admissible. The following then transpired:

"The Court: ... What is the materiality of any evidence on speeds or injuries that may have occurred over the range in which the plaintiff testified his motorcycle was going?

Mr. Dante Mattioni [counsel for appellant]: Notice as it relates to the frame, Your Honor.

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The Court: I will sustain the objection and limit the inquiry into those...