Cornelison v. Aggregate Haulers, Inc.

777 S.W.2d 542, 1989 Tex. App. LEXIS 2569, 1989 WL 119210
CourtCourt of Appeals of Texas
DecidedAugust 31, 1989
Docket2-88-057-CV
StatusPublished
Cited by18 cases

This text of 777 S.W.2d 542 (Cornelison v. Aggregate Haulers, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cornelison v. Aggregate Haulers, Inc., 777 S.W.2d 542, 1989 Tex. App. LEXIS 2569, 1989 WL 119210 (Tex. Ct. App. 1989).

Opinion

OPINION

HILL, Justice.

Bob L. Cornelison and Teddie M. Corneli-son, individually and as heirs of Bobby J. Cornelison, deceased, and Mark L. Morris and his wife Jeri Morris, separately appeal from the trial court’s judgment which awards them damages as to one Terry Jones but orders that they each take nothing from Aggregate Haulers, Inc., the ap-pellee. Jones has not appealed the trial court’s judgment. The Cornelisons and Morrises each present fourteen points of error.

We affirm the take-nothing judgment as to Aggregate Haulers, Inc., but we reverse the judgment in favor of the Cornelisons and Morrises as to Terry Jones and remand the damage issues of that portion of this cause to the trial court. Jones did not contest liability.

This lawsuit resulted from a collision on August 14, 1986, between an automobile driven by Terry Jones and an Aggregate Haulers truck and gravel trailer which was parked on the shoulder of U.S. Highway 287 in Wise County. Mark Morris and Bobby Cornelison were passengers in the automobile. Cornelison died in the accident, while Morris suffered injuries. The parents of Cornelison, and Morris and his wife each brought suit against Jones and Aggregate Haulers. The suits were consolidated and tried together.

In all the appellants’ points of error numbers one, two, three, and four, and in the Morrises’ point of error number five, the appellants contend that the trial court erred by admitting into evidence certain medical records of Jones which contain the statement, “This 19 year old white male was admitted this a.m. after falling asleep at the wheel and being involved in a single car accident.” All the appellants contend that the admission of this record was error: (1) because it constituted inadmissible hearsay and was calculated to and probably did cause the rendition of an improper verdict; (2) because the deposition supporting the records was taken without notice to the appellants in violation of TEX.R.CIV.P. 208; (3) because no notice of the filing of the deposition was given as required by TEX.R.CIV.P. 208; and (4) because the testimony was that of a witness who was not identified pursuant to a proper request for discovery in violation of TEX.R.CIV.P. 215. The statement complained of was under a section headed “History of P.I.” There is no indication in the record as to who made the statement.

Statements contained in a medical record as to how an accident happened or where it happened, age, medical history, etc. are not admissible as a business-record exception to the hearsay rule, because the party making the entry in the record does not have personal knowledge as to these matters, and the statements do not become trustworthy just because it is hospital routine to record them. Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305 (Tex.1962). Such statements may be admissible if the record reflects that they fall within some other exception to the hearsay rule. Id. at 306.

Aggregate Haulers argues that the statement was admissible as an admission of a party, Jones. We hold that it was not, because there was no showing that the record was based on a statement made by Jones. Aggregate attempts to place the burden on those challenging admissibility to establish that the history was not based on a statement made by Jones. It asserts that it must simply establish that the record is a part of the patient’s history, relying on Skillern, and Wright v. Excalibur Insurance Company, 486 S.W.2d 130, 135 (Tex.Civ.App.—Dallas 1972, no writ). We believe that the reliance on Skillem is misplaced, because the record in that case reflected that the medical history was based on statements made either by Mrs. Rosen or her sister. In this case the record does not reflect upon whose statement the history was based. The Wright case involved the admission of a hospital record stating that the patient had stepped in a hole in his yard “about a week ago” and *546 had reinjured himself, although he had been feeling better up to that time. Although the opinion held that the entry was admissible as an admission, it does not reflect that any objection was made based upon a failure to show upon whose statement the history was made. In this case, objection was made as to the fact that the record did not reflect it was based upon a statement by Jones. We hold that the admission of the evidence was error.

We must determine whether the error amounted to such a denial of the rights of the appellants as was reasonably calculated to cause, and probably did cause, rendition of an improper judgment. TEX. R.APP.P. 81(b)(1). Aggregate contends that the admission of the evidence did not constitute reversible error, because it was not harmful to the appellants since it constituted proof of the negligence of Jones. They further contend that the error is not reversible since the whole case did not turn on the error, relying on the cases of Roach v. Roach, 735 S.W.2d 479, 485 (Tex.App.—Houston [1st Dist.] 1987, no writ) and Atlantic Mutual Ins. Co. v. Middleman, 661 S.W.2d 182, 185 (Tex.App.—San Antonio 1983, writ ref'd n.r.e.).

In its answers to questions asked in the court’s charge, the jury found that Terry Jones’ negligence in driving on the shoulder of the road was a proximate cause of the collision, but it failed to find that any impropriety in warning signals used by Aggregate’s truck driver was a proximate cause of the collision. The appellants argue that the jury may have determined that since Jones was asleep that it did not matter that Aggregate’s driver did not place the proper warning signals out on the road.

Aggregate’s driver testified that he had parked his truck on the shoulder of the road and that although he had not placed the proper warning devices out on the road, he had turned on his warning flashers. He said that he could see flashing lights and running lights from other trucks for a distance of about a mile back from the location where he was stopped. He said that he was already back in his truck when the accident happened, after he had gone in for a cup of coffee. He said that if he had put reflectors out that he would have picked them up and put them in the truck before leaving. Terry Jones, the driver of the car which crashed into the back of the truck, testified that he looked up and saw the truck just before he hit it. He could not remember why he did not see it sooner or why he was driving on the shoulder of the road. He did say that if reflectors had been put down that he probably would have seen them and applied his brakes more quickly.

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Bluebook (online)
777 S.W.2d 542, 1989 Tex. App. LEXIS 2569, 1989 WL 119210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornelison-v-aggregate-haulers-inc-texapp-1989.