CSX Transportation, Inc. v. Battiste

578 So. 2d 1065, 1991 Ala. LEXIS 372, 1991 WL 88822
CourtSupreme Court of Alabama
DecidedApril 26, 1991
Docket89-1713
StatusPublished
Cited by2 cases

This text of 578 So. 2d 1065 (CSX Transportation, Inc. v. Battiste) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CSX Transportation, Inc. v. Battiste, 578 So. 2d 1065, 1991 Ala. LEXIS 372, 1991 WL 88822 (Ala. 1991).

Opinion

INGRAM, Justice.

Lawrence L. Battiste sued CSX Transportation, Inc., under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. (1988), asserting that he had suffered an on-the-job injury while employed by CSX on January 5, 1987. Battiste alleged that, as he was unfastening a generator that was mounted to the bed of a truck owned by CSX, the lid to the metal box enclosing the generator closed on his hand, because the safety chain designed to hold the lid in place was broken. Battiste further alleged that, as a result of the accident, he suffered injuries to his hand and his musculo-skeletal system. The jury awarded a $150,-000 verdict for Battiste. The trial court entered a judgment on the jury’s verdict. CSX appeals.

CSX raises five issues for our consideration here. First, CSX contends that the trial court erred in admitting certain testimony that it asserts is inadmissible hearsay. CSX’s second argument is that the trial court abused its discretion in refusing to allow one of CSX’s expert witnesses to testify. CSX’s third argument is that the trial court erred in refusing to give one of CSX’s proposed jury instructions. Next, CSX raises the issue whether Battiste failed to prove a causal connection between the accident and the injuries to his neck. CSX’s final assertion is that Battiste’s own negligence was the proximate cause of his injuries and that the jury failed to consider Battiste’s contributory negligence in assessing damages.

The first issue raised by CSX is whether the trial court erred in allowing Battiste’s wife to testify as to conversations between her husband and one of his treating physicians, Dr. David N. Pate. CSX asserts that the testimony constituted hearsay and was, therefore, improperly admitted by the trial court. Battiste counters by arguing that the trial court correctly received the testimony because it was not offered for the truth of its contents, and was, therefore, not hearsay.

The record reveals that on direct examination, Mrs. Battiste was questioned about her husband’s conversation with Dr. Pate, wherein Dr. Pate asked Mr. Battiste questions regarding his medical history. Specifically, the record reveals the following colloquy:

“Q. [Plaintiff’s counsel]: Were you in the room when your husband met with Dr. Pate?
“A. Yes, I was.
“Q. Do you recall any discussions between Dr. Pate and your husband about weight lifting?
“[Defendant’s counsel]: That is a yes or no question, and I think that she is entitled to answer it that way.
“[The court]: Sustained.
[1067]*1067“Q. Were you in there when any discussion was made about whether — about any weight lifting?
“A. Yes.
“[Plaintiff’s counsel]: They have had the opportunity to take Dr. Pate’s deposition in terms of what he said about the conversation. I think that I am entitled to let her say what she knows about it.
“[Defendant’s counsel]: It is a classic hearsay what she heard other people talk about.
“[The court]: Overruled. Overruled the objection. Go ahead, please_ Go ahead.
“Q. What do you recall about that conversation?
“A. After he had examined him he was talking about — he asked him if whether or not he had any hobbies. He had complained about the pains in his joints and things, and my husband made mention that we jogged, more or less fast walked, around the park in the afternoons, he and I. And that he had at some time lifted weights.
“Q. And do you recall there being anybody — anything said about lifting 400 pound weights?
“A. No, ma’am.”

Hearsay is defined as an out-of-court statement offered to show the truth of the matter asserted. Lavett v. Lavett, 414 So.2d 907 (Ala.1982), overruled on other grounds, McBride v. McBride, 548 So.2d 155 (Ala.1989). Simply put, hearsay evidence is what the witness says he heard another say, and such extrajudicial assertions offered to prove the truth of the assertion are inadmissible as evidence. Coca-Cola Bottling Co. v. Hammac, 48 Ala.App. 60, 261 So.2d 893 (1972). However, the rule forbids the introduction of a statement only when that statement is offered for the truth of its contents. Meriwether v. Crown Inv. Corp., 289 Ala. 504, 268 So.2d 780 (1972). Consequently, many out-of-court statements have been admitted based upon the rationale that such statements are admitted for some purpose other than to prove the truth of the statements. See, e.g., Bryant v. Moss, 295 Ala. 339, 329 So.2d 538 (1976).

In the present case, we find that Mrs. Battiste’s testimony was properly admitted into evidence by the trial court. It is clear that Mrs. Battiste’s testimony was not offered to prove that her husband had experienced pain in his joints, or that Battiste and his wife jogged, or that Battiste had lifted weights at some point in time; rather, Mrs. Battiste’s testimony was offered merely for the purpose of showing that she did not recall Battiste’s having expressed to Dr. Pate anything related to his having engaged in weight lifting activities since the accident. Therefore, we conclude that Mrs. Battiste’s testimony was not hearsay and was properly received into evidence by the trial court.

CSX’s next argument is that the trial court abused its discretion in refusing to allow an expert witness for CSX to testify. The trial court ruled that Dr. Gary Hunter, a professor of exercise physiology at the University of Alabama at Birmingham, could not testify because CSX had not notified Battiste’s counsel, until a few days before the trial began, that Dr. Hunter might be called as a witness.

Rule 26(e)(1), A.R.Civ.P., provides:

“A party is under a duty seasonably to supplement his response with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.”

Furthermore, this Court has held that whether to allow or to refuse testimony of an expert witness or of any witness who has not been previously designated through discovery is within the sound discretion of the trial court. For example, in Electrolux Motor AB v. Chancellor, 486 So.2d 414 (Ala.1986), this Court found no abuse of discretion in the trial court’s refusal to allow the defendant’s expert witness to testify, where the defendant had previously stated, in response to an interrogatory, that it would call an expert, but the plaintiff never received a court-ordered [1068]*1068witness list and the defendant did not supplement its answer to the interrogatory after deciding who would be used as its expert witness. Also, in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc.,

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Bluebook (online)
578 So. 2d 1065, 1991 Ala. LEXIS 372, 1991 WL 88822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/csx-transportation-inc-v-battiste-ala-1991.