Zepeda v. Moore
| Decision Date | 05 June 1941 |
| Docket Number | No. 4096.,4096. |
| Citation | 153 S.W.2d 212 |
| Parties | ZEPEDA et al. v. MOORE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; Everett F. Johnson, Judge.
Action by Guadalupe L. Zepeda and others against S. J. Moore for the alleged wrongful death of Willie Zepeda, Sr. From a judgment for defendant, plaintiffs appeal.
Affirmed.
G. Woodson Morris, of San Antonio, for appellants.
Dodson, Ezell & Duke, of San Antonio, for appellee.
This is an appeal from the Fifty-Seventh District Court of Bexar County.
The suit is a death action brought by Mrs. Guadalupe L. Zepeda and her four adult and seven minor children, as plaintiffs, against S. J. Moore, as defendant, for the alleged wrongful death of Willie Zepeda, Sr., the husband and father of the plaintiffs. The parties will be here designated as in the trial court.
The trial was to a jury. On the verdict of the jury the court rendered judgment in favor of the defendant, from which the plaintiffs have perfected this appeal.
The death and this action are the result of a collision between a station wagon in which the deceased was riding and a truck operated by the defendant. The pleading of the plaintiffs alleges the truck was parked on Highway 66 about twelve miles south of San Antonio on the night of December 15, 1937, and that the station wagon was driven into the rear end of the truck; that the night was a dark, foggy, rainy night, and the pavement wet and slick. The truck was a gasoline-tank-trailer type. The evidence shows it was parked on the right side of the highway with the right-hand wheels on the shoulder and the left-hand wheels about one and a half feet on the pavement. The petition alleges the defendant was negligent in so parking his truck under the conditions prevailing that night, and otherwise charges liability. It charged other acts of negligence which we deem unnecessary to set out here.
The defendant answered with a general demurrer, a general denial, certain special denials, ten alleged specific acts of contributory negligence on the part of Willie Zepeda, Jr., the operator of the station wagon, five claimed acts of contributory negligence on behalf of the deceased, and unavoidable accident.
We think it unnecessary to further detail the pleadings, because such of them as are necessary will appear in the discussion of the issues raised.
The plaintiffs replied with a number of exceptions, general and special, but none of them present questions to be decided on this appeal.
The plaintiffs have eight assignments of error, and brief the first six under three propositions.
The first is that the court erred in sustaining the defendant's objection to and not permitting the witness Willie Zepeda, Jr., to testify that very shortly after the accident the truck driver started to move the truck, and that he (Willie Zepeda, Jr.) requested him not to move it until the "law" got there, to which the driver replied: "I will have to move it because I don't want to be responsible for another accident." Plaintiffs insist the testimony is admissible as res gestae. The defendant objected on the grounds it is immaterial and irrelevant, did not tend to prove any matter alleged in the petition; that it constituted an attempt to have the truck driver confess liability for his employer; that it was a mere opinion and conclusion; that it denied the defendant the right of cross-examination, and was hearsay.
We think the statement was made under circumstances which would constitute it res gestae, if it were a statement of a fact such as would throw light on the transaction, and if otherwise admissible. We think the statement properly excluded, because at best it was nothing more than the conclusion or opinion of the truck driver. A conclusion or opinion is no more admissible as a declaration than if offered as original testimony under oath. DeWalt v. Houston E. & W. T. Ry. Co., 22 Tex.Civ.App. 409, 55 S.W. 534; Red Arrow Freight Lines v. Gravis, Tex.Civ. App., 84 S.W.2d 540, and cases cited.
Plaintiffs submit their second proposition as pertinent to their assignments two, three, four and five, which proposition is: "It is settled law that either party is entitled to have any fact or group of facts raised by the pleadings and the evidence affirmatively or directly presented to the jury."
Assignments two, three, four and five complain of the failure of the court to submit their special charges in the form of...
To continue reading
Request your trial
-
Southerland v. Porter
...such testimony was an opinion and conclusion and invaded the province of the jury we believe it would have been good. Zepeda et al. v. Moore, Tex.Civ.App., 153 S.W.2d 212 (writ refused); A. B. C. Storage & Moving Co., Inc. v. Herron et ux., Tex.Civ.App., 138 S.W.2d 211, 216. We find no such......
-
Billingsley v. Southern Pac. Co., 164
...opinions as to rates of speed from facts detailed to them. Stamper v. Scholtz, 29 S.W.2d 883 (Tex.Civ.App.) 1930, err. ref.; and Zepeda v. Moore, 153 S.W.2d 212 (Tex.Civ.App.) 1941, err. dism. Under the circumstances shown in the record, the witnesses were qualified to express their opinion......
-
Missouri-Kansas-Texas R. Co. v. Hamilton
...S.W.2d 941; Davis v. Younger Bros., Tex.Civ.App., 260 S.W.2d 637; Linkenhoger v. Gilbert, Tex.Civ.App., 223 S.W.2d 308; Zepeda v. Moore, Tex.Civ.App., 153 S.W.2d 212; 19 Tex.Jur. 134; 32 C.J.S. Evidence Secs. 449, 451, pp. 86, 89; McCormick & Ray, 'Texas Law of Evidence' (2d Ed.), sec. 1400......
-
Cross v. Patch's Estate
...App. 402, 152 N.E.2d 701, 705; Johnson v. Huskey, 186 Kan. 282, 350 P.2d 14; White v. Zutell, 2 Cir., 263 F.2d 613; Zepeda v. Moore, Tex.Civ.App., 153 S.W.2d 212, 214; and see Reardon v. Marston, 310 Mass. 461, 38 N.E.2d 644, 647; Wood v. Ezell, Mo.App., 342 S.W.2d 503. Of course, the witne......