Miller v. Hometown Propane Gas, Inc.

• Decision Date: 12 May 2004
• Docket Number: No. CA 02-1044.,CA 02-1044.
• Citation: 167 S.W.3d 172
• Parties: Glenda MILLER v. HOMETOWN PROPANE GAS, INC.
• Court: Arkansas Supreme Court

167 S.W.3d 172

Glenda MILLER v. HOMETOWN PROPANE GAS, INC.

No. CA 02-1044.

Court of Appeals of Arkansas, Division IV.

May 12, 2004.

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James R. Wallace & Associates, by: Kimberly C. Bosshart, Little Rock, for Appellant.

Womack, Landis, Phelps, McNeil & McDaniel, by: David Landis, Mark A. Mayfield, and Dustin H. Jones, Jonesboro, for Appellee.

SAM BIRD, Judge.

Appellant Glenda Miller filed this action in Faulkner County Circuit Court against appellee Hometown Propane Gas, Inc., regarding personal injury and property damages caused by the September 29, 1999, explosion of Miller's home in Damascus, Arkansas. The home was heated primarily by propane gas. Miller's complaint alleged that Hometown's failure to properly provide propane gas service caused the explosion and resultant injuries to Miller; the destruction of the house and its contents, surrounding trees and foliage, household pets, and farm animals; and other property damage.

The case proceeded to a jury trial. Witnesses who testified included Doyle Durdin, the owner of Hometown at the time of the trial; Allan Looney, the employee who had filled the propane tank outside of Miller's home on the date the home exploded; and Miller. The jury returned its verdicts on interrogatories, finding Miller eighty percent at fault and Hometown twenty percent at fault, but awarding Miller $15,000 in damages. As a result of the jury's verdicts, the circuit court dismissed the complaint, ruling that neither party take anything by way of damages. Miller subsequently filed a motion for a new trial under Ark. R. Civ. P. 59, asking the court to return the case to the jury, objecting to entry of judgment, and moving for new trial. All requests were denied.

Miller raises four points on appeal. She contends that the trial court erred (1) by excluding evidence of a telephone message she left on appellee's answering machine, informing appellee that a pressure test needed to be done before her propane gas tank was filled, (2) in allowing appellee "to question a lay witness who assumed certain facts on which he based an opinion," (3) in allowing appellee to use a "questionable" demonstrative aid, and (4) by giving an improper jury instruction regarding the doctrine of "last clear chance." For the reasons explained in this opinion, we affirm.

1. Whether the trial court erred by excluding evidence of appellant's telephone message on appellee's answering machine

A pretrial hearing was held on Hometown's motion in limine requesting that Miller not be allowed to testify that she had left two telephone messages on Hometown's answering machine, in the first call saying that she was out of propane gas and that Hometown should conduct a pressure test when they filled her tank, and in the second call merely stating her name and that she needed propane. Both parties acknowledged that the employee who serviced the tank (Allan Looney) admitted that he went to Miller's house because he got "a message." Hometown argued that Miller's testimony about leaving the message could not be verified, that telephone messages "get recorded over," and that hearsay statements made by a declarant other than when testifying at trial are excluded under the rules of evidence. Miller argued that her statement was admissible as an exception to the hearsay rule as evidence of her motive and intent for calling and asking for services because she was out of gas. The court withheld its ruling.

At an in-camera hearing on the morning of trial, Hometown again raised the hearsay objection and argued that there was no way to determine whether Miller's first message had been received because Hometown did not deliver her propane until after the second message. Miller contended that although the messages were hearsay, they were admissible under the state-of-mind exception because they demonstrated her state of mind that she was out of propane gas. The trial court excluded the evidence as hearsay.

On appeal, Miller argues, as she did before the trial court, that testimony regarding the content of her telephone messages should have been allowed as an exception to the hearsay rule, either to show her motive for having her tank filled or under the residual exception of Ark. R. Evid. 803(24); or that it should have been allowed under Ark. R. Evid. 1004, the best evidence rule, in that the original message was lost or destroyed.¹

The evidence at issue here does not fall within an exception to the hearsay rule because the messages that Miller claims to have left on Hometown's answering machine are not hearsay. Arkansas Rule of Evidence 801(c) (2003) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Arkansas courts have held that certain statements are not hearsay when they are not offered to prove the truth of the matter asserted, but rather to show that the statements were made. Gautney v. Rapley, 2 Ark.App. 116, 617 S.W.2d 377 (1981). See also Wal-Mart Stores, Inc. v. Dolph, 308 Ark. 439, 825 S.W.2d 810 (1992). Miller argued at the in-camera hearing that her testimony about the telephone message she left was a pivotal issue because the person who had serviced her tank would testify that her propane tank was not empty, and that whether the propane tank was or was not empty was determinative of the procedures he should have taken to ascertain whether there was a leak in the tank and to prevent the explosion.

We affirm on this point because Miller's objection at trial that her messages were admissible as an exception to the hearsay rule was incorrect. Miller's purported recorded messages, informing Hometown that she needed propane gas and that her propane tank would need pressurizing, were not hearsay because they were not offered for the purpose of proving either that Miller needed propane gas or that her propane tank needed pressurizing. Rather, the messages were offered and were admissible to prove that Hometown had notice of those facts. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Miller erroneously conceded at trial that her testimony was hearsay and argued that her testimony was admissible under exceptions to the hearsay rule. It is clear to us, however, that appellant's testimony as to what she said in the messages she left on Hometown's telephone message recorder should have been admitted because the messages were not hearsay. However, Miller did not make this argument to the trial court.

The only argument preserved for appeal under this first point is whether Miller's telephone messages fell within the hearsay exception of Rule 803(3) as the declarant's then existing state of mind or motive. Rule 803(3) provides:

A statement is excluded from the hearsay rule if it is a statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

As discussed above, evidence of the messages that Miller left on Hometown's recorder was offered as attempted substantive proof of Hometown's knowledge that she was out of gas; it was not offered to express a current feeling, physical condition, or state of mind of the declarant. The admission of evidence is left to the sound discretion of the trial court; on appeal, the trial court's ruling will not be reversed absent a manifest abuse of discretion. Metzgar v. Rodgers, 83 Ark.App. 354, 128 S.W.3d 5 (2003). Here, we find no abuse of discretion in the trial court's ruling that the evidence was inadmissible under Rule 803(3).

2. Whether the trial court erred in allowing appellee to question a lay witness who assumed certain facts on which he based an opinion

Doyle Ray Durdin Jr. testified that he bought Hometown Propane on January 27, 2000; that he had not been affiliated with the business in September 1999; and that he had no firsthand knowledge about the explosion at Miller's home. Durdin also testified that Looney had told him that after noticing that the percentage gauge on Miller's tank was low, Looney stuck his thumb in the filler valve because he was concerned about the pressure and he tried to push the filler valve down to make sure that there was still gas in the system before he filled it. Durdin said that Looney told him that there had been no report of gas outages or other problems at the residence, and that Looney had offered to light the pilot lights.

Miller objected that no foundation had been laid when Durdin was asked to assume he was the one driving the truck on the day in question. Rephrasing the question, appellee asked, "Based upon your experience as a truck driver of propane and deliveryman back in '99, would you have done anything different than Mr. Looney?" Counsel renewed her objection, but the court allowed the testimony. Durdin then answered that, based on his experience as a truck driver of propane and deliveryman in 1999, he "would have done nothing different than Mr. Looney."

Rule 702 of Ark. R. Evid. (2003) provides that if expert testimony will assist the jury in understanding a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Whether to allow a witness to give expert testimony rests largely within the sound discretion of the trial court, and the court's determination will not be reversed absent an abuse of that discretion. Swadley v. Krugler, 67 Ark.App. 297, 999 S.W.2d 209 (1999).

The appellant in Dildine v. Clark Equipment Co., 285 Ark. 325, 686 S.W.2d 791 (1985), who was injured while operating a front-end loader called a 632...