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

• Decision Date: 20 June 1984
• Docket Number: No. C-2579,C-2579
• Citation: 673 S.W.2d 185
• Parties: Lindsey McINNES, Petitioner, v. YAMAHA MOTOR CORP., U.S.A., Respondent.
• Court: Texas Supreme Court

Page 185

673 S.W.2d 185

59 A.L.R.4th 989

Lindsey McINNES, Petitioner, v. YAMAHA MOTOR CORP., U.S.A., Respondent.

No. C-2579.

Supreme Court of Texas.

June 20, 1984.

Rehearing Denied July 18, 1984.

Dante Mattioni and Francis X. Kelly, Philadelphia, Pa., Spivey & Grigg, Broadus A. Spivey and Paul E. Knisely, Austin, White, Huseman, Pletcher & Powers, Anthony E. Pletcher, Corpus Christi, for petitioner.

Guy Allison and Kathryn Snapka, Corpus Christi, for respondent.

RAY, Justice.

Lindsey McInnes brought this suit against Yamaha Motor Corporation, U.S.A., and other defendants, to recover for injuries he received in a motorcycle accident which occurred on November 2, 1974, in Corpus Christi, Texas. McInnes claimed that as he was operating his 1973 Yamaha TX 650 motorcycle, the motorcycle went out of control and crashed into a highway guardrail, causing him to be rendered a quadriplegic. ¹ All defendants except Yamaha were either dismissed or granted judgment prior to trial. Against Yamaha, McInnes pleaded causes of action in negligence, strict liability, breach of warranty, and deceptive trade practices.

Trial was to a jury. The jury found that the frame of the motorcycle involved in the accident was defectively designed, that Yamaha failed to give McInnes adequate warnings regarding use of the motorcycle, and that McInnes' actual damages totalled approximately $3.9 million. The jury also found that neither defective design nor failure to warn was a producing cause of the accident. The jury further found that the motorcycle did not develop an uncontrollable wobble prior to the accident and that McInnes' failure to keep a proper lookout was a proximate cause of the accident. The trial court rendered judgment upon the verdict that McInnes take nothing. The court of appeals affirmed. 659 S.W.2d 704 (Tex.App.1983). Before this court, McInnes brings four points of error concerning evidentiary matters. We affirm the judgments of the courts below.

We first address McInnes' argument that the trial court improperly excluded from evidence that portion of the deposition of Leo Lake taken on May 29, 1981. The deposition was filed with the trial court on June 8, 1981, the date trial began. McInnes contends that in the excluded portion of the deposition, Lake, a Yamaha official, acknowledged that the 1973 Yamaha TX 650 could wobble at speeds less than forty miles per hour. There was testimony at trial that McInnes was travelling at a speed of forty miles per hour or less when the accident occurred. McInnes asserts that because the excluded testimony of Lake was the only direct admission by Yamaha that its 1973 TX 650 motorcycle was subject to "low speed wobble," exclusion of the testimony was reversible error. The argument is that the jury probably would have found that the defectively designed frame of the motorcycle caused McInnes' accident if it had heard testimony by an official of Yamaha that the motorcycle could wobble at relatively low speeds.

We do not reach the question of whether the trial court erred in excluding the May 29, 1981, portion of Lake's deposition, because McInnes has failed to preserve the point. The statement of facts reveals that the trial court held a hearing on the admissibility of the deposition in question outside the presence of the jury. Yamaha claimed that the deposition was inadmissible because it had been deprived of an opportunity to cross-examine Lake during the taking of the deposition. Counsel on the two sides then argued at length about who was at fault for Yamaha's failure to cross-examine Lake. After the trial court ruled that the disputed portion of Lake's deposition was inadmissible, the jury returned to the courtroom and trial continued. Counsel for McInnes did not even attempt to perfect a proper bill of exceptions containing the proffered evidence, as required by Texas Rule of Civil Procedure 372. The excluded testimony is not set forth in a formal bill of exceptions, nor does it otherwise appear in the statement of facts. Therefore, McInnes' assignment of error regarding the exclusion of Lake's deposition testimony has not been properly preserved. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984).

McInnes argues that since Lake's deposition was already on file with the trial court when it was excluded from evidence, the deposition itself constitutes a sufficient bill of exceptions. We disagree. The requirements for a bill of exceptions found in Rule 372 ensure that the bill is accurate and complete. Obviously, this important purpose would be defeated if we were to excuse failure to comply with those requirements. That Lake's excluded deposition was on file with the trial court and subsequently accompanied the record on appeal is not sufficient to make it a proper bill of exceptions. See Indust-Ri-Chem Laboratory, Inc. v. Par-Pak Co., Inc., 602 S.W.2d 282, 297 (Tex.Civ.App.--Dallas 1980, no writ); Victoria Comfort Air Co. v. Alamo Express, Inc., 529 S.W.2d 250, 252 (Tex.Civ.App.--Corpus Christi 1975, no writ); Dallas Fountain & Fixture Co. v. Hill, 330 S.W.2d 648, 650 (Tex.Civ.App.--Dallas 1959, writ ref'd n.r.e.); c.f. Wise v. Pena, 552 S.W.2d 196, 202 (Tex.Civ.App.--Corpus Christi 1977, writ dism'd w.o.j.) (summary judgment evidence is not a substitute for bill of exceptions).

The second issue before this court is whether the trial court erred in admitting evidence concerning McInnes' consumption of alcohol on the day of the accident. McInnes claims that as a predicate for the admission of such evidence, Yamaha was required to produce some independent evidence of improper conduct on the part of McInnes prior to the accident. Yamaha responds that McInnes has waived this point of error, because his own counsel first brought up the subject of McInnes' alcohol consumption. We agree with Yamaha.

A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character. Pouncy v. Garner, 626 S.W.2d 337, 340 (Tex.App.--Tyler 1981, writ ref'd n.r.e.); Hughes v. State, 302 S.W.2d 747, 750 (Tex.Civ.App.--Eastland 1957, writ ref'd n.r.e.); see Kutch v. Holly, 77 Tex. 220, 14 S.W. 32, 34 (1890). Counsel for McInnes made the first reference in front of the jury to McInnes' alcohol consumption. During his opening statement, McInnes' counsel said:

On that day [McInnes] took his motorcycle to Spot Cycle Shop, which is off State Highway 286. It was approximately 1:00 o'clock or shortly thereafter, and he left his motorcycle there. During the interim he played some pool while they worked on his motorcycle and he had a few glasses of beer.

Counsel for McInnes also introduced the first evidence concerning McInnes' alcohol consumption by reading to the jury McInnes' deposition, in which McInnes testified that he drank six glasses of beer prior to the accident. It is clear from the record that McInnes is in no position to complain of the admission of evidence that he consumed alcohol on the day of the accident. Thus, we do not reach the issue of whether Yamaha laid the proper predicate for the admission of such evidence.

We turn next to McInnes' complaint that the trial court erred in admitting "speculative" testimony of Dr. Rupp, a forensic pathologist called to the stand by Yamaha. On direct examination, Dr. Rupp calculated the amount of alcohol in McInnes' bloodstream at the time of the accident. His first calculation was based upon a notation made in McInnes' hospital records by Dr. Martin, the physician who treated McInnes after the accident. These hospital records were properly in evidence under Tex.Rev.Civ.Stat.Ann. art. 3737e. Dr. Martin had noted that McInnes was "slightly intoxicated" at 8:00 p.m. on the day of the accident. Dr. Rupp testified that in order for such an observation to have been made on a quadriplegic patient such as McInnes, McInnes' blood-alcohol level must have been .1 percent. Using an absorption rate of alcohol by the body of .02 percent per hour, Dr. Rupp extrapolated from this .1 percent figure and concluded that McInnes had a blood-alcohol level of .16 percent when the accident occurred at 5:00 p.m. He stated that this meant that McInnes had six or seven beers in his system at the time of the accident.

The parties agree that Dr. Martin's observation that McInnes was "slightly intoxicated" was an insufficient basis for Dr. Rupp's opinion that McInnes' blood-alcohol level was .1 percent at the time the observation was made. Therefore, whether it was error to admit this opinion is a question we need not decide; it is assumed to be so. The issue for decision is whether the trial court's error in admitting Dr. Rupp's opinion, and the testimony based thereon, presents grounds for a new trial. McInnes contends that putting Dr. Rupp's inadmissible testimony into evidence resulted in an improper jury finding that McInnes' failure to keep a proper lookout was a proximate cause of the accident.

The erroneous admission of testimony that is cumulative is ordinarily not reversibly harmful. Whitener v. Traders & General Ins. Co., 155 Tex. 461, 289 S.W.2d 233 (1956). The record establishes that the improperly admitted testimony of Dr. Rupp was cumulative of other evidence before the jury. Dr. Rupp himself gave...