Moore v. Grantham

• Decision Date: 27 February 1980
• Docket Number: No. B-8529,B-8529
• Citation: 599 S.W.2d 287
• Parties: William MOORE, Petitioner, v. Nancy GRANTHAM, Respondent.
• Court: Texas Supreme Court

Page 287

599 S.W.2d 287

William MOORE, Petitioner, v. Nancy GRANTHAM, Respondent.

No. B-8529.

Supreme Court of Texas.

Feb. 27, 1980.

On Rehearing May 14, 1980.

Rehearing Denied June 20, 1980.

Brown, Maroney, Rose, Baker & Barber, Scott R. Kidd, Austin, for petitioner.

Kidd & Whitehurst, William O. Whitehurst, Jr. and Mack Kidd, Austin, for respondent.

GREENHILL, Chief Justice.

This case involves the question whether an expert in vocational rehabilitation can give his opinion concerning a person's future earning capacity, when his opinion is based solely on hearsay information not otherwise introduced into evidence at trial.

The trial court was of the view that our decision in Slaughter v. Abilene State School, 561 S.W.2d 789 (Tex.1977), permitted the introduction of such expert testimony. The trial court, therefore, allowed the witness to state his opinion to the jury. The court of civil appeals affirmed. That court interpreted Slaughter as permitting the introduction of an expert's opinion based upon hearsay so long as the hearsay was "of a type upon which the expert and others within his profession customarily (relied) . . . ." 580 S.W.2d 142, 148.

We disagree with the lower courts' reading of our decision in Slaughter, and the Nancy Grantham brought suit against William Moore. She sought damages for injuries arising out of an automobile accident. After trial to a jury, in which all questions of liability were answered favorably to Ms. Grantham, the jury returned a verdict for $56,576.44. Of this amount, $39,600.00 was awarded for Ms. Grantham's loss of future earning capacity. The trial court rendered judgment on the verdict. The trial judge overruled Moore's contention that there had been no competent evidence on which the jury could have based its award for loss of future earning capacity.

other applicable precedents. Accordingly, we reverse the judgment of the court of civil appeals, and remand this cause for a new trial.

The evidence concerning the issue of lost earning capacity may be summarized as follows. Prior to the accident, Ms. Grantham had been trained in the field of interior design. She had about five years experience in the field, working both in salaried positions and in attempting to start her own business. In her salaried jobs, Ms. Grantham had earned no more than $600.00 per month.

While working for herself, Ms. Grantham had charged from $20.00 to $30.00 an hour. She was unable, however, to present any evidence of her monthly income during this period of self-employment. At the time of the accident, Ms. Grantham's business was in a state of decline, and she was actively seeking a salaried position elsewhere.

Other than the expert testimony, set out below, there was no other evidence concerning her potential earning capacity in the interior design field.

After the accident, Ms. Grantham was unable to continue working in the area of interior design. Although she had been offered jobs in that field, she was unable to estimate her potential income in that field, since the available job positions paid only on a commission basis. At the time of trial, Ms. Grantham was employed as an assistant manager of a retail store. Her job paid $600.00 per month.

In an effort to meet her burden of proof in relation to her loss of future earning capacity, Ms. Grantham called Dr. Carl Hansen as her expert witness. Dr. Hansen is a professor at The University of Texas, where he is the Director of the Rehabilitation Counsellor Education Program. He is qualified as an expert in vocational rehabilitation.

Despite his qualifications in the field of vocational rehabilitation, Dr. Hansen readily admitted that he had no personal knowledge of, or contact with, the profession of interior design. ¹ In preparing to testify concerning Ms. Grantham's future earning capacity in this field, Dr. Hansen referred to Department of Labor and Manpower publications, conducted a local telephone survey of Austin area interior design businesses, and interviewed a home economics professor at The University of Texas. At trial, however, Ms. Grantham failed to introduce into evidence any of the external sources relied on by Dr. Hansen in preparing to testify. She relied solely on the testimony of Dr. Hansen.

Dr. Hansen testified that an interior designer, with experience and ability comparable Since Ms. Grantham was earning only $600.00 per month, Dr. Hansen calculated that her total lost earning capacity ranged between $39,200.00 and $117,600.00. As previously noted, the jury returned a verdict awarding Ms. Grantham $39,600.00 for her future lost earning capacity.

to Ms. Grantham, should earn between $700.00 and $900.00 per month. Dr. Hansen further testified that the Department of Labor Statistics showed the statewide average for interior decorators to be closer to $900.00 per month. His telephone survey in Austin, however, showed the area average to be closer to $700.00 per month.

It has long been the law of this state that an expert's opinion may not be based solely on the statements or reports of third persons, unless those statements are properly in evidence and the opinion is sought through hypothetical questions. Reed v. Barlow, 157 S.W.2d 933 (Tex.Civ.App. San Antonio 1941, writ ref'd); Perkins v. Springstun, 557 S.W.2d 343 (Tex.Civ.App. Austin 1977, writ ref'd n. r. e.). See also C. McCormick & R. Ray, Texas Law of Evidence § 1404 (1956 & 1978 Supp.).

While the courts have adopted a more liberal approach in allowing an expert's opinion testimony to be based partially on hearsay, Graham v. Oak Park Mobile Homes, Inc., 546 S.W.2d 394 (Tex.Civ.App. Corpus Christi 1977, no writ); Bryant v. Trinity Universal Insurance Co., 411 S.W.2d 945 (Tex.Civ.App. Dallas 1967, writ ref'd n. r. e.); Sutherland v. McGregor, 383 S.W.2d 248 (Tex.Civ.App. Fort Worth 1964, writ ref'd n. r. e.); Gray v. Bird, 380 S.W.2d 908 (Tex.Civ.App. Tyler 1964, writ ref'd n. r. e.), this Court has yet to adopt a rule permitting an expert's opinion testimony to be based solely on hearsay.

Contrary to Ms. Grantham's contentions, this Court has specifically declined to adopt such a broad rule of admissibility in two recent decisions. In Slaughter v. Abilene State School, 561 S.W.2d 789 (Tex.1977), this Court was faced with the question whether an injured plaintiff could present expert medical opinion testimony concerning the cause of an injury, where the doctor had been consulted solely for the purpose of giving testimony and not for treatment. In holding that this expert medical opinion could be introduced into evidence, this Court was careful to point out that the testifying doctor had not based his expert opinion solely on the patient's history, as told by the patient. Rather, the doctor gained personal knowledge of the patient's condition by making a physical examination and taking x-rays.

In permitting the doctor's testimony into evidence, we declared our understanding of the state of the law in relation to expert opinion testimony : "Texas courts have followed the general rule that where it appears a witness' testimony is predicated both upon personal knowledge and upon hearsay, his testimony is admissible." 561 S.W.2d at 791 (emphasis added).

Nor does the opinion in Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex.1972) ² support Ms. Grantham's argument in behalf of such a broad rule of admissibility. In Lewis, an attack was made upon the granting of a charter to a savings and loan association. This attack was based upon the contention that certain expert testimony should have been excluded from the administrative hearing, since the expert's opinion was based upon hearsay. Further, since that testimony should have been excluded, it was argued that there was insufficient evidence to support the order of the Savings and Loan Commissioner.

In rejecting these contentions, the opinion held that, without regard to the evidence attacked as hearsay, there was "substantial evidence, based on personal knowledge of the lay and expert witnesses, to support" the Commissioner's order. 480 S.W.2d at 184 (emphasis added). Further, the opinion specifically declared, in rejecting the contention that certain expert opinion testimony should have been excluded as hearsay, that Dr. Yeager also testified from his own personal knowledge. An expert, when qualified as such, may give his opinion and relate sources which are customarily and usually relied upon by experts in the field upon which he partially relied in forming his opinion, together with his own personal knowledge, which support or tend to support that opinion.

480 S.W.2d at 186 (emphasis added).

In the instant case, Dr. Hansen admitted that he had no personal knowledge of the wage scale in the interior design field. Instead of partially relying on outside sources, as contemplated in Lewis, Dr. Hansen totally relied on outside sources, with reference to the wage scale in the interior design field. Thus, the Lewis opinion, rather than permitting Dr. Hansen's expert opinion on Ms. Grantham's lost earning capacity, would have prevented the submission of that testimony, as his opinion about her earning potential was based solely upon hearsay, unmixed with any personal knowledge. ³

A case that is directly on point is Reed v. Barlow, 157 S.W.2d 933 (Tex.Civ.App. San Antonio 1941, writ ref'd). In Reed, the court held expert opinion testimony concerning the potential oil production from certain lands to be inadmissible. In Reed, the expert had collected all of the information relevant to his testimony from third party sources. In giving his testimony, he relied solely on records of electrical surveys, reports of oil scouts, reports of production data, sample cores and logs of completed wells in the vicinity surrounding the land that he was studying. At trial, however, none of those reports, records or logs on which he relied were placed into evidence. In holding this opinion testimony to...