Southwestern Bell Telephone Company v. Johnson

389 S.W.2d 645

• Court: Texas Supreme Court
• Decided: March 31, 1965
• Docket: A-10458
• Status: Published

Opinions

SMITH, Justice.

The plaintiff, Robert Richard Johnson, filed suit jointly against the defendants, Southwestern Bell Telephone Company and James Cozart, for damages and personal injuries sustained on December 1, 1960, when Johnson was struck by a truck belonging to Bell and driven by Cozart while in the course and scope of his employment.

Upon jury findings that Cozart was not negligent¹ in any respect, as alleged in plaintiff’s petition, the trial court entered judgment that plaintiff take nothing by his suit. The Court of Civil Appeals, one justice dissenting, reversed the judgment of the trial court and remanded the cause to that court for a new trial. 382 S.W.2d 765. We reversed the judgment of the Court of Civil Appeals and affirm that of the trial court.

The issue to be decided in this Court, and the one with which the Court of Civil Appeals dealt in reversing the cause, is whether or not a trial court, in the exercise of its discretion, can refuse the testimony of a person who has not been placed under the rule after the provisions of Rule 267,² Texas Rules of Civil Procedure, had been invoked. Plaintiff invoked the rule before any testimony was received by the trial court, and all of the witnesses present were admonished by the Court concerning the rule.

It is necessary at this point to relate the pertinent facts which had developed when the trial court was called upon to rule as to whether or not plaintiff’s investigator, Ray Blakey, a witness proffered by the plaintiff, should be allowed to testify, even though he was present when the rule was invoked, but was never placed under the rule.

Johnson was employed by the Water Department of Timpson, Texas. Cozart was employed by Bell in the City of Timpson. The night before Johnson was injured, a small grocery store partially burned in the city. The next morning, the Water Department sent a crew of men, including Johnson, and Bell sent Cozart and others to check their respective facilities. Johnson arrived at the scene before Cozart. Admittedly, Cozart legally parked his truck. While Cozart was at the scene Johnson began working on the water meter, which waslocated in the ground approximately three feet in front of the truck. While Johnson was down on his knees in front of the truck, Cozart started his engine, saw nothing in front of his vehicle, turned to the left and drove forward striking Johnson.

Johnson testified that Cozart had parked his truck and then walked to a telephone pole, which was approximately six to ten feet in front of the Cozart truck, climbed the pole, and when he descended the pole he walked back to his truck, walking within a few feet of Johnson working on the water meter in front of the truck. Cozart testified that he did not climb the telephone pole nor walk within a few feet of Johnson while he was working on the ground in front of the truck. Johnson’s testimony in regard to Cozart climbing the telephone pole and passing near him, no doubt, would tend to disprove Cozart’s testimony that he did not see Johnson when he entered the truck and drove forward striking Johnson.

During the trial Bell and Cozart introduced a witness, Cecil Watson, who testified on direct examination that he saw the accident occur and the Cozart truck did not strike Johnson. Watson gave no testimony about Cozart climbing a telephone pole. However, on cross-examination and in response to questions propounded by plaintiff’s attorney, Watson testified that he “never did see Mr. Cozart up a pole.” Watson was also asked during the cross-examination if he had talked about the accident with Ray Blakey. Watson answered that he had not. Watson admitted having a conversation with Blakey about “cattle and a little of everything,” but denied discussing the case.

Plaintiff then called Blakey to testify he had obtained, without the knowledge of Watson, a voice recording of a conversation he had with Watson wherein Watson had said that Cozart did climb the pole in question. Upon objection by Bell and Co-zart, the trial court refused to allow the testimony of Blakey because Johnson had invoked the rule and the witness Blakey had remained in the court room to hear other witnesses testify. The record shows that Blakey not only remained in the court room and heard testimony given by some of the witnesses, but participated in the presentation of plaintiff’s case by reading the answers of certain portions of Cozart’s depositions.

We interpret the Court of Civil Appeals opinion as holding that the trial court had no discretion m the matter, and that it was reversible error to deny the jury “their prerogative to determine if the voice on the recording machine was indeed Watson’s” The Court cites in support of its position the case of Johnson v. Cooley (1902), 30 Tex.Civ.App. 576, 71 S.W. 34, no wr. hist, which held that “the administration of justice would be better subserved by denying to the trial court the right in any case to refuse to allow the witness to testify.” The Cooley case does not hold that the trial judge was without discretion, but it does hold that the ruling of the judge was an abuse of discretion.

We agree that it is a serious matter to exclude any evidence that might throw light on the issues. However, we disagree with the plaintiff’s position that under no circumstances may the Court, in its discretion, refuse to allow testimony where the rule has been invoked and where the proffered witness has either violated the rule, or who has not been placed under the rule. The question is not whether the action of the Court in disqualifying Blakey appears to us to have been required, but rather the question for decision is whether the Court abused its discretion. The trial judge had the discretionary authority to take into consideration all of the facts, including the fact that the voice recording was made with the intention that it be used at the trial and with the knowledge that Ray Blakey was the only person who could identify the recording. The plaintiff invoked the rule and should have seen that Blakey was placed under rule. We cannot say that the judge, in the exercise of his discretionary power, acted arbitrarily or unreasonably in disqualifying the proffered witness, Blakey. The action of the trial court should be upheld. “The mere fact or circumstance that a trial judge may decide a matter within his discretionary authority in a manner different from what an appellate judge would decide if placed in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290 (1959).

Our disposition of the question discussed is decisive of this appeal and renders a decision on other questions presented in this Court unnecessary.

Even though we have concluded that the trial court did not abuse its discretion in holding that Blakey was a disqualified witness, we must, before disturbing the judgment of the intermediate court which holds otherwise, examine Johnson’s brief, which he filed as appellant in that court, to determine whether there is another ground upon which the judgment of the latter court should be affirmed. See Texas Employers Ins. Ass’n v. Kennedy, 135 Tex. 486, 143 S.W.2d 583 (1940); Meyer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575 (1955); McKelvy v. Barber, 381 S.W.2d 59 (Tex.Sup., 1964).

Johnson presented eight points in the Court of Civil Appeals. That Court sustained one of the points, overruled five, and did not pass upon the remaining two. The action of the Court of Civil Appeals in overruling Johnson’s points has not been questioned in this Court. The two points which were left undecided by the Court of Civil Appeals complain of the action of the trial court in refusing to allow Johnson’s attorney to lay a predicate for impeaching the witness Watson, and in refusing to grant the request of Johnson’s counsel that the bailiff conduct Watson to the “witness stand without being allowed to talk to anyone.” The effort to impeach the witness Watson was in connection with the unsuccessful attempt to qualify Blakey as a witness. We hold that the trial court’s action was proper. The points are overruled.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

CALVERT, C. J., and WALKER, J., dissenting.

1 . The jury found that Cozart did not fail to keep a proper lookout; that Cozart’s failure to warn Johnson and his failure to drive to one side of Johnson were not acts of negligence. The jury did not find Cozart guilty of any negligence. The jury found that the accident was unavoidable.

2 . “Rule 267. Witnesses Placed Under Rule. At the request of either party, in a civil case, the witnesses on both sides may be sworn and removed out of the court room to some place where they can not hear the testimony as delivered by any other witness in the cause. * * * witnesses, when placed under the rule, shall be instructed by the court that they are not to converse with each other or with any other person about the case other than the attorneys in the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under the rule. Any person violating such instructions may be punished for contempt of court.”