Forbes v. Hejkal

271 S.W.2d 435, 1954 Tex. App. LEXIS 2092
CourtCourt of Appeals of Texas
DecidedJuly 9, 1954
DocketNo. 14776
StatusPublished
Cited by1 cases

This text of 271 S.W.2d 435 (Forbes v. Hejkal) 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
Forbes v. Hejkal, 271 S.W.2d 435, 1954 Tex. App. LEXIS 2092 (Tex. Ct. App. 1954).

Opinion

YOUNG, Justice.

The suit in trial court was one for damages growing out of personal injuries sustained by Mrs. Metha Forbes in a collision with defendant’s pickup truck on or about July 1, 1952 at intersection of Colorado and Cedar Hill Streets, Dallas. Plaintiff (appellant Mrs. Forbes) was riding as a passenger in a car driven by Erna Phillips, her daughter. Upon trial of cause, the jury findings, in effect, were that defendant Hejkal was not at fault; the failure of Erna Phillips to have her automobile under control being established as the sole proximate cause of the collision. Following an adverse judgment on these jury findings, plaintiff has seasonably brought the record up for review; the points of appeal centering on alleged erroneous court rulings relative to certain testimony of Erna Phillips, first by deposition and later in person.

Mrs. Phillips was herself a defendant in another pending suit for damages brought by Hejkal, growing out of the same accident, and had been sworn in as a plaintiff’s witness at inception of the instant trial. Factual background of the points presented for reversal must first be stated.

Scene of the collision was near the intersection of the named streets — Colorado, running east and west, and Cedar Hill Road, a north and south street. Mrs. Phillips had been driving her Plymouth car eastward on Colorado, turning right into Cedar Hill Road; defendant, proceeding north on the latter highway at the same time, had approached the intersection at which there was a boulevard stop sign. Material issues of the case were two: (a) of whether defendant’s car was on plaintiff’s side of the street at moment of impact, and (b) on part of plaintiff, of whether her own car was under proper control. (See Footnote 1).

The oral deposition of Mrs. Erna Phillips was on file, taken at instance of defendant. Parts of this deposition had been introduced by plaintiff in connection with her prima facie case; one statement of Mrs. Phillips therein being that she was “hit right there as he (defendant) was coming down the center part of the road over on my side.” At conclusion of this [437]*437deposition testimony of • appellant’s witness Mrs. Phillips, defendant endeavored to call her to the witness stand for cross-examination in lieu of the cross-interrogatories and answers as contained in her deposition; the court sustaining objections to such procedure on authority of Industrial Fabricating Co. v. Christopher, Tex.Civ.App., 220 S.W.2d 281. Plaintiff thereafter rested her case, defendant then calling Mrs. Phillips to the stand “as an adverse witness at this time”; the court overruling objection of plaintiff’s counsel that Mrs. Phillips could not be called for such limited purpose; and if called at all, that she was a defendant’s witness “for all purposes * * After questioning this witness on preliminary matters not in dispute, defendant’s counsel proceeded to bring out the fact of a written statement made by her on July 2, 1952 to a man investigating the collision. Mrs. Phillips acknowledged signing the statement which said in part: “I feel the cause of the accident was due to the streets being wet and slick and causing me to slide when applying my brakes” and that “The pickup (truck) was on his right side or east side of the pavement at the time of the impact.” The court then permitted defendant to place said statement in evidence (Footnote 2) over plaintiff’s objections, in effect, that the procedure had made of Mrs. Phillips a defense witness for all purposes and that defendant could not so bolster or impeach his own witness without a proper predicate. On examination of the witness in turn by plaintiff’s counsel, she reiterated that defendant’s pickup was on her “one-half side of the street” at time of collision; the court overruling plaintiff’s motion to strike all of the testimony (Exhibit 1) just outlined at conclusion of such examination of Mrs. Phillips before the jury.

Points of appeal, in effect, complain of alleged court errors: (1) In ruling “that the witness, Erna O. Phillips, was not the witness of the appellee even though the appellee had placed the witness on the witness stand”; (2) in allowing “the ap-pellee. to impeach the witness, Erna O. Phillips, after the witness was placed on .the witness stand by the appellee, and was the witness of the appellee”; (3) in allowing “the appellee to • impeach the witness, Erna O. Phillips, when no proper predicate had been laid for such impeachment”; (4) in allowing “a written statement previously made by the witness, Erna - O. Phillips, to be introduced into evidence as affirmative evidence of the facts set out in the written statement”; (5) in allowing “the appellee to introduce a previous vyritten statement of the witness, Erna O. Phillips, into evidence [438]*438because same was hearsay as to appellants”; and (6) “in not limiting the written statement of Erna O. Phillips introduced into evidence as impeachment evidence against the witness, and in failing to instruct the jury that the statement was to be considered by them for no other purpose.” Appellee answers the foregoing points by assuming the opposite thereof; counter-points 5 and 6 asserting no error on part of the court in admitting the Erna Phillips statement because the objection of hearsay was not applicable; that no further error was involved in failing to limit the statement of Erna Phillips to impeachment purposes and in not instructing the jury that the statement should be so limited.

Appellants’ propositions, thus countered, involve complexities not apparent on first reading; but that defendant’s call of Mrs. Phillips to the stand was as his own witness, is clear under the following case holdings: (1) “The fact that a deposition taken by one party is used in evidence by his adversary does not entitle the party who took it to place the witness on the stand for the purpose of cross examination.” Industrial Fabricating Co. v. Christopher, Tex.Civ.App., 220 S.W.2d 281, 288, quoting from 44 Tex.Jur. 1143. “The depositions of a witness cannot be blended with or merged into his testimony on the stand in person, and the taking of his depositions and their use by the opposite party from the one who took them does not change or alter a single rule as to the examination of the witness in person. All that is held in the cited case is that when the opposite party introduces depositions not taken by him they become his evidence, and none has- held that when so used the witness can be called for cross-examination as though he had testified in person for the opposite party. It would indeed be a novel practice.” Cook v. Denike, Tex.Civ.App., 216 S.W. 437, 440. (2) A witness whose deposition has been introduced by one party and who is subsequently called in person by the adversary party, becomes the witness of the latter if called upon to testify to new matter. Texas Pipe Line Co. v. Higgs, Tex.Civ.App., 243 S.W. 633; Fenner v. American Surety Co., Tex.Civ.App., 156 S.W.2d 279; Clary v. Morgan Motor Co., Tex.Civ.App., 246 S.W.2d 936.

But did defendant’s use of Mrs.

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Bluebook (online)
271 S.W.2d 435, 1954 Tex. App. LEXIS 2092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forbes-v-hejkal-texapp-1954.