ANDERSON, Justice.
This suit was instituted by G. C. Edwards and his wife, Artelia, against Montgomery Ward and Company, Inc., to recover damages for personal injuries alleged to have been sustained by Mrs. Edwards on or about December 9, 1946, when she fell while shopping in the defendant’s store in Beaumont, Texas. Trial to a jury resulted in an instructed verdict and a judgment in favor of the defendant.
The parties will be referred to as in the trial court, Mr. and Mrs. Edwards as plaintiffs, and Montgomery Ward and Company, Inc., as defendant.
The plaintiffs alleged that the manner in which the defendant had arranged a display of furniture made it necessary for Mrs. Edwards to follow the particular route she did in going to the place in the store where she was'to transact her business ; that there1 was a cracked and uneven place in the concrete floor along said route; that such cracked and uneven place was obscured by the manner in which it had been painted over; that the floor was excessively slick because of a floor dressing that had been applied to it; and that the obscured defect and the slickness of the floor caused Mrs. Edwards to fall. They specifically alleged that the defendant had been negligent in the following respects: in permitting the crack to remain in the floor; in permitting the floor to remain uneven; in failing to inspect the premises; in painting the crack and the rest of the floor the same color, thereby concealing, without correcting, the defect; in applying the slippery dressing to the surface of the floor; and in unnecessarily routing customers over the defective place in the floor. These alleged acts of negligence were also alleged to have been proximate causes of Mrs. Edwards’ fall and injuries.
The defendant’s answer consisted of a general denial, a general allegation of negligence on the part of Mrs. Edwards as the proximate cause of. her fall and injuries, and an allegation that Mrs. Edwards’ fall and injuries were the result of an unavoidable accident.
The appellants predicate their appeal on four points. The first three pertain to the trial court’s rulings on matters of evidence, while the fourth asserts that the trial court erred in peremptorily instructing a verdict in favor of the defendant.
The instructed verdict was proper in the circumstances, and appellant’s fourth point is overruled., No evidence to show negligence on the part of tjie defendant reached the jury. The evidence that was permitted to go to the jury did no more than show that Mrs. Edwards fell and was injured while shopping in defendant’s store.
The fact that an instructed verdict was proper in the circumstances does not, however, dispense with the necessity of passing upon the trial court’s rulings whereby evidence tendered by the plaintiffs was excluded. Clearly, if tendered evidence which would have rendered the instructed verdict improper was erroneously excluded, and if [434]*434the error or errors have been properly preserved and presented for review, the case must be reversed and remanded for a new trial. This is so, even though the plaintiffs probably could have made out their case with evidence other than that tendered. Beyond requiring that proof be made by legal and competent evidence, courts have no authority to direct the manner in which litigants shall prove the facts upon which they rely.
Plaintiff G. C. Edwards was the only witness who in person testified in the presence of the jury. The plaintiffs undertook through him to place before the jury a description of the place where Mrs. Edwards fell. The witness was not present when his wife fell and had no first hand knowledge of where or in what circumstances she fell. His knowledge of these matters consisted altogether of what his wife and two men in the defendant’s store had told him. One of the men (Tortoris) was admittedly an employee of the defendant. The testimony which was excluded, and the exclusion of which is now assigned as error, was with reference to what Tortoris and Mrs. Edwards had either shown or told the witness.'
The witness Edwards had, it is true, gone to the third floor of defendant’s store and personally observed it on the day following that on which his wife had fallen, but he was never asked merely to describe the premises as he had found them. In their material aspects, the descriptions which were called for, and the ones which the witness undertook to give, were always of the particular place he claimed had been pointed out to him by 'his wife and Tortoris as the place where Mrs. Edwards had fallen.
Appellant’s points will be discussed in their inverse order.
Point three complains that the trial court erred in excluding testimony by G. C. Edwards that M. C. Tortoris had shown him the place where Mrs. Edwards fell.
The plaintiffs not only undertook to prove by the witness that the place where Mrs. Edwards had fallen was pointed out to him by defendant’s employee Tortoris on the day following the date of the mishap, but undertook to have the witness identify and describe that place. They also offered to prove in this connection that Tortoris had at the same time represented that he saw Mrs. Edwards fall and helped pick her up.
These extra-judicial statements and acts attributed to Mr. Tortoris were obviously offered to prove the truth of the facts asserted; i. e., to prove that Mr. Tortoris had in fact seen Mrs. Edwards fall and had helped pick her up, and was therefore familiar with the place where she had fallen, and to establish that Mrs. Edwards had in fact fallen at the place designated by Mr. Tortoris. The testimony, therefore, was hearsay, and was inadmissible unless it falls within one of the exceptions to the hearsay rule. The appellants apparently recognize this fact, but argue that the testimony should have been received in evidence as admissions of the defendant, made through one of its agents while the latter was acting within the course and scope of his employment.
On the record before us, we are unable to agree with this argument. No authority was shown for Mr. Tortoris to say and do in behalf of'the defendant the things about which the witness was prepared to testify. No contention is made that he was thereto .expressly authorized, and the evidence was insufficient to clothe him with implied authority. There was no evidence from which it can be inferred that he was the alter ego of the corporation, or that he was authorized to adjust or settle claims for damages for personal injuries, or in any manner to represent the company in connection with such claims. Construed most liberally in favor of the appellants, and without discounting the conclusions of the witness Edwards, the evidence did no more than show that Mr. Tortoris was employed by the defendant as a salesman who was “in charge of the rug department” on the third floor of defendant’s store, the third floor being the one on which Mrs. Edwards fell. This showing of employee status was not sufficient from which to infer his authority to make assertions or admissions on [435]*435behalf of his principal affecting the latter’s rights or liabilities in regard to the subj ect matter of this suit. See: Texas Law of Evidence (McCormick & Ray) p. 6S8, § 508; 31 C.J.S., Evidence, § 346; 4 Texas Law Review 506; Rogers v. Collier, Tex.Civ.App., 223 S.W.Zd 560, err. ref. The acts and statements of Mr. Tortoris which plaintiffs sought to prove were not a part of the res gestae, but were mere narrations of past facts.
Free access — add to your briefcase to read the full text and ask questions with AI
ANDERSON, Justice.
This suit was instituted by G. C. Edwards and his wife, Artelia, against Montgomery Ward and Company, Inc., to recover damages for personal injuries alleged to have been sustained by Mrs. Edwards on or about December 9, 1946, when she fell while shopping in the defendant’s store in Beaumont, Texas. Trial to a jury resulted in an instructed verdict and a judgment in favor of the defendant.
The parties will be referred to as in the trial court, Mr. and Mrs. Edwards as plaintiffs, and Montgomery Ward and Company, Inc., as defendant.
The plaintiffs alleged that the manner in which the defendant had arranged a display of furniture made it necessary for Mrs. Edwards to follow the particular route she did in going to the place in the store where she was'to transact her business ; that there1 was a cracked and uneven place in the concrete floor along said route; that such cracked and uneven place was obscured by the manner in which it had been painted over; that the floor was excessively slick because of a floor dressing that had been applied to it; and that the obscured defect and the slickness of the floor caused Mrs. Edwards to fall. They specifically alleged that the defendant had been negligent in the following respects: in permitting the crack to remain in the floor; in permitting the floor to remain uneven; in failing to inspect the premises; in painting the crack and the rest of the floor the same color, thereby concealing, without correcting, the defect; in applying the slippery dressing to the surface of the floor; and in unnecessarily routing customers over the defective place in the floor. These alleged acts of negligence were also alleged to have been proximate causes of Mrs. Edwards’ fall and injuries.
The defendant’s answer consisted of a general denial, a general allegation of negligence on the part of Mrs. Edwards as the proximate cause of. her fall and injuries, and an allegation that Mrs. Edwards’ fall and injuries were the result of an unavoidable accident.
The appellants predicate their appeal on four points. The first three pertain to the trial court’s rulings on matters of evidence, while the fourth asserts that the trial court erred in peremptorily instructing a verdict in favor of the defendant.
The instructed verdict was proper in the circumstances, and appellant’s fourth point is overruled., No evidence to show negligence on the part of tjie defendant reached the jury. The evidence that was permitted to go to the jury did no more than show that Mrs. Edwards fell and was injured while shopping in defendant’s store.
The fact that an instructed verdict was proper in the circumstances does not, however, dispense with the necessity of passing upon the trial court’s rulings whereby evidence tendered by the plaintiffs was excluded. Clearly, if tendered evidence which would have rendered the instructed verdict improper was erroneously excluded, and if [434]*434the error or errors have been properly preserved and presented for review, the case must be reversed and remanded for a new trial. This is so, even though the plaintiffs probably could have made out their case with evidence other than that tendered. Beyond requiring that proof be made by legal and competent evidence, courts have no authority to direct the manner in which litigants shall prove the facts upon which they rely.
Plaintiff G. C. Edwards was the only witness who in person testified in the presence of the jury. The plaintiffs undertook through him to place before the jury a description of the place where Mrs. Edwards fell. The witness was not present when his wife fell and had no first hand knowledge of where or in what circumstances she fell. His knowledge of these matters consisted altogether of what his wife and two men in the defendant’s store had told him. One of the men (Tortoris) was admittedly an employee of the defendant. The testimony which was excluded, and the exclusion of which is now assigned as error, was with reference to what Tortoris and Mrs. Edwards had either shown or told the witness.'
The witness Edwards had, it is true, gone to the third floor of defendant’s store and personally observed it on the day following that on which his wife had fallen, but he was never asked merely to describe the premises as he had found them. In their material aspects, the descriptions which were called for, and the ones which the witness undertook to give, were always of the particular place he claimed had been pointed out to him by 'his wife and Tortoris as the place where Mrs. Edwards had fallen.
Appellant’s points will be discussed in their inverse order.
Point three complains that the trial court erred in excluding testimony by G. C. Edwards that M. C. Tortoris had shown him the place where Mrs. Edwards fell.
The plaintiffs not only undertook to prove by the witness that the place where Mrs. Edwards had fallen was pointed out to him by defendant’s employee Tortoris on the day following the date of the mishap, but undertook to have the witness identify and describe that place. They also offered to prove in this connection that Tortoris had at the same time represented that he saw Mrs. Edwards fall and helped pick her up.
These extra-judicial statements and acts attributed to Mr. Tortoris were obviously offered to prove the truth of the facts asserted; i. e., to prove that Mr. Tortoris had in fact seen Mrs. Edwards fall and had helped pick her up, and was therefore familiar with the place where she had fallen, and to establish that Mrs. Edwards had in fact fallen at the place designated by Mr. Tortoris. The testimony, therefore, was hearsay, and was inadmissible unless it falls within one of the exceptions to the hearsay rule. The appellants apparently recognize this fact, but argue that the testimony should have been received in evidence as admissions of the defendant, made through one of its agents while the latter was acting within the course and scope of his employment.
On the record before us, we are unable to agree with this argument. No authority was shown for Mr. Tortoris to say and do in behalf of'the defendant the things about which the witness was prepared to testify. No contention is made that he was thereto .expressly authorized, and the evidence was insufficient to clothe him with implied authority. There was no evidence from which it can be inferred that he was the alter ego of the corporation, or that he was authorized to adjust or settle claims for damages for personal injuries, or in any manner to represent the company in connection with such claims. Construed most liberally in favor of the appellants, and without discounting the conclusions of the witness Edwards, the evidence did no more than show that Mr. Tortoris was employed by the defendant as a salesman who was “in charge of the rug department” on the third floor of defendant’s store, the third floor being the one on which Mrs. Edwards fell. This showing of employee status was not sufficient from which to infer his authority to make assertions or admissions on [435]*435behalf of his principal affecting the latter’s rights or liabilities in regard to the subj ect matter of this suit. See: Texas Law of Evidence (McCormick & Ray) p. 6S8, § 508; 31 C.J.S., Evidence, § 346; 4 Texas Law Review 506; Rogers v. Collier, Tex.Civ.App., 223 S.W.Zd 560, err. ref. The acts and statements of Mr. Tortoris which plaintiffs sought to prove were not a part of the res gestae, but were mere narrations of past facts. They were not performed or made by him in connection with the discharge of any duty he was employed by the defendant to perform, and we are of the opinion that the testimony regarding them was inadmissible as evidence.
By their second point the appellants complain that the trial court erred “in placing an impossible burden on appellant by requiring (as a prerequisite to testifying to what he saw at appellee’s store) that appellant prove not only the identity and capacity of store employees who were present when Mrs. Edwards fell, but also the fact that they were present, while at the same time excluding all evidence tending to show that they had been there when she fell.”
We consider this point also to be without merit. As we construe the record, the court did not at any time require proof of the presence, identity, or capacity of any of defendant’s employees, as a prerequisite to permitting the witness merely to describe defendants’ premises as he himself had seen them. It merely ruled that the witness would not be permitted to give in evidence hearsay testimony without first identifying the person about whose acts and statements he proposed to testify, showing such person’s relationship to the defendant, or his authority to speak or act for the defendant, and showing such person’s testimonial knowledge; and that these matters could not be shown by more of the same hearsay testimony. These rulings were proper in the circumstances.
The witness had by his own testimony already shown himself to be without personal or testimonial knowledge of the location of the place where his wife fell, and he proposed to fix this location by what another had told him. The proposed testimony was obviously hearsay, and was inadmissible unless under one of the exceptions to the hearsay rule. Proper objection to its reception in evidence had been timely made, and was prima facie subject to be sustained. In the circumstances, therefore, the burden rested on the plaintiffs, as the ones offering such testimony, to establish or demonstrate its-admissibility under some exception to the hearsay rule. Johns v. Northcutt, 49 Tex. 444, 455. In other words, before being entitled to have such testimony received in evidence, it was necessary, at least, that plaintiffs prima facie prove by legal and competent evidence all facts essential to show that it came within one of the exceptions. Therefore, since plaintiffs undertook to bring the testimony within the exception which under a proper state of facts entitles hearsay admissions of an agent to be received in evidence, it was only proper that they be first required to identify in some manner the supposed agent, and to prove by legal evidence the existence of the relationship of principal and agent, the authority of the agent, the agent’s testimonial knowledge, and the circumstances attending his acts and declarations that were to be placed in evidence. These were not matters which in this instance could be properly proved by the tendered additional extra-judicial statements of the same person.
By their first point the appellants complain that the trial court erred “in refusing to permit 'appellant G. C. Edwards to describe, from his own personal observation, the premises where his wife fell.”
With immaterial exceptions, the witness Edwards, as we have previously stated, was never requested nor directed, by having his attention directed to the premises as such, .to describe any area of the third floor of the defendant’s store. Instead, despite the fact that he had no personal knowledge of its location, he was consistently requested or’ directed to de[436]*436scribe the place where his wife fell, or else to describe the place which had been pointed out to him by his wife or by Mr. Tortoris as the place where she fell. The location of the place where Mrs. Edwards fell had not been independently established by other evidence. The plaintiffs were endeavoring to establish it by proof of the extra-judicial statements and acts of Mr. Tortoris. The method they adopted for translating the gestures of Mr. Tortoris into words was, in the main, that of having the witness describe the physical aspects of the place toward which Mr. Tortoris had pointed. Therefore, even though the witness had personal knowledge of the physical aspects of the place he offered to describe, such description became or was hearsay when offered, as it was, for the purpose of identifying the place Mr. Tortoris had pointed out, as the place where Mrs. Edwards had fallen. While the testimony may have been intended in some instances to serve the two-fold purpose of both identifying and describing the location, it cannot be disassociated from the purpose which rendered it improper evidence.
We do not find in the record any description, free of this- fault, of a defect in the defendant’s premises sufficient to raise an issue as to defendant’s negligence. The only proffered testimony of the witness which might have been sufficient for this purpose was the following, given after the witness had testified that an aisle which had a turn in it was formed by a display of furniture, and led from the elevator to the rug department; and in its essential qualities it demonstrates, we think, the fault we have mentioned:
“Q. Where is the place with reference to the corner of the aisle or the place at which she had to make á turn, where was that? A. Well, that was about fifteen feet from the elevator, I suppose. I didn’t measure it, but there was a seam in the cement.
“Q. You are talking about the corner of the place where she fell? A. The place where she fell at the corner, yes, sir.
“Q. She fell at the corner, is that it? A. Where she made her turn.
“Q. Is it just before you get to the corner of the curve from the elevator or just after she got to the corner? A. She fell fust after she got to the corner, she tried to make the corner.
“Q. You mean the place the man showed you would be just past the corner, if a person would go from the elevator to the rug display in the back, isn’t that correct? A. That is correct.
“Q. Describe the appearance of this place. A. Well, I went up there and from what I could see the floor had been painted, it was slick and there was a gap where the cements lapped, there is a junction there, a hole there that deep and about that wide. It is a high place in the seam.
“Q. Will tell us how much, in terms of inches what it is, a quarter of an inch? A. I presume that hole in the floor there is every bit of three quarters of an inch deep and it is right in the seam of the cement.
“Q. Right in the seam of the cement? A. That is right.
“Q. Is there any way you can describe the type of floor that exists up there? What did exist at the time on the defendant’s premises there on the third floor, can you tell us what type of floor it was? A. Well, it appeared to be nice floor, it was painted slick with a green, a light green paint, and it looked glassy, that is the way it appeared.
“Q. Do you know what — was it wood, or brick? A. It was cement, a cement floor painted over.
“Q. A cement floor. Was it in sections or all in one piece ? A. It was in sections, I suppose. I don’t know much about cement, but it was in seams like this stuff here.
“Q. You are pointing to— A. The ceiling.
[437]*437. "Q. The noise-proof stuff we have in the ceiling, that is in squares, is that right? A. Yes, sir.
“Q. Were they that size squares, or larger. A. Oh, they was bigger squares than that.
“Q. Bigger, and did they have seams running at the sides of the squares like you see in this ceiling? Did they have seams ? A. That is correct.
“Q. In the place where she fell were the blocks even, were the square blocks even or uneven? A. I noticed that one of them was about one eighth of an inch higher at one place on the side where this cement lapped at the seam at the corner where the four o.f them comes together there.
“Q. When you talk about the corner you are talking about the place where the four corners or four of those cement squares would come together, is that correct? A. That is correct.
“Q. Can you draw a diagram of that and show the Court how that looks ? A. I think I could. I am not much of an artist, but I believe I could.
“Q. See if you can indicate by drawing here the type of place that was indicated to you by Mr. Tortoris as the place where your wife fell. A, (Witness draws on paper.) I am not trying to put all the amount of stuff that was on there, but this stuff represents furniture, the little squares I made, and that is the way it looked to me when I went up there.
“Q. All right. Of course, this turn you show to the rugs is not perfectly square, you intended it to be a square turn there? A. Yes, sir
“Q. We will show this to the Court here and we would like to have that made as an exhibit for the bill, Your Honor. [The exhibit was made a part of the record.]
“Q. Now you have drawn us a picture here, drawn a picture of the pathway a person would go from the elevator to the rugs? A. That is right.
“Q. And you also indicated on here, or can you indicate the appearance of the spot where you were shown there by Mr. Tortoris that she fell? Have you got that shown on there, or cam, you show it? (Witness draws on paper.) A. There is an arrow pointing there.”
In support of their bill of exceptions, the. plaintiffs offered testimony by Mrs. Edwards, apparently for the purpose of “connecting up” the place where she fell with the place Mr. Edwards had described. However, conceding, for the purposes of this discussion, that her testimony was prima facie sufficient to show the connection — and it probably was — it did not remove the objectionable, hearsay aspects of Mr. Edwards’ testimony insofar as the statements and acts of Mr. Tortoris were concerned. The descriptive portions of his testimony were never tendered, free of this vice, and remained inadmissible.
Because of the confused state of the record, we have also considered the testimony of Mrs. Edwards which was offered in connection with the bill of exceptions to see whether, standing alone, it would have been sufficient to have' carried the case ⅛ the ju'ry, and we have concluded 'that it would not. It tended to show that the floor was slick because of a floor dressing that had been applied to it, but we do not consider it sufficient to have raised an issue of negligence on that score. See: Rogers v. Collier, Tex.Civ.App., 223 S.W.2d 560; Springall v. Fredericksburg Hospital & Clinic, Tex.Civ.App., 225 S.W.2d 232; Russell v. Liggett Drug Co., Tex.Civ.App., 153 S.W.2d 231.
It follows from what we have said that the judgment of the trial court must be affirmed.
Affirmed.