Victoria Comfort Air Co. v. Alamo Express, Inc.

529 S.W.2d 250, 1975 Tex. App. LEXIS 3067

• Court: Court of Appeals of Texas
• Decided: September 18, 1975
• Docket: 1003
• Status: Published

Opinions

OPINION

NYE, Chief Justice.

This is a freight damage suit brought by Victoria Comfort Air Company against Alamo Express, Inc. After trial in Justice of the Peace Court in Victoria County which favored the plaintiff, Alamo appealed to the County Court at Law where a trial de novo was had. The trial court entered a take nothing judgment in favor of Alamo, whereupon plaintiff appeals.

The case was tried before the court without the benefit of a court reporter. The transcript includes the pleadings, the judgment, the trial court’s findings of fact and conclusions of law. The balance of the record, which is a transcription of the hearing before the court on plaintiff’s motion for judgment and the parties’ statements in their briefs, indicates that the trial court refused to permit the introduction of the deposition testimony of plaintiff’s witness John Henry Smith. Smith’s testimony was essential to establish plaintiff’s claim for money damages. During the course of the trial, plaintiff’s attorney offered Smith’s deposition. The defendant objected on the grounds that the deposition did not comply with Rule 189, T.R.C.P., in that the plaintiff had failed to set out the proper mailing address of the officer taking the deposition in his notice. The plaintiff argues that it was too late for defendant to object to the deposition since the interrogatories had been on file with the clerk of the court for many months prior to trial and that plaintiff could not now object, citing Rule 212, T.R.C.P. The trial court sustained the defendant’s objection anyway, and ruled that the plaintiff should take nothing.

On appeal, the plaintiff argues that Rule 212 is decisive and that we should reverse the trial court’s judgment and render judgment for the plaintiff. The “Rule” says:

“When a deposition shall have been filed in the court at least one entire day before the day on which the case is called for trial, no objection to the form thereof, or to the manner of taking the same, shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences. As amended by order of March 19, 1957, effective Sept. 1, 1957.” Rule 212, T.R.C.P.

The “Rule” is clear. If a deposition has been on file for more than one day, any such objection thereof as to the form, must be made in writing with notice to the opposing counsel before the trial begins. See Bankers Multiple Line Insurance Company v. Gordon, 422 S.W.2d 244 (Tex.Civ. App. — Houston [1st Dist.] 1967, no writ); Morgan v. Morgan, 519 S.W.2d 276 (Tex.Civ.App. — Austin 1975, n. r. e.). Since the subject deposition had been on file for a long period of time (in excess of one day), and defendant’s objection came for the first time in court, the trial court erred in sustaining defendant’s objection. But did the appellant perfect this error?

Rule 372, T.R.C.P., states that if either party during the progress of a trial is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time such ruling is made and at his request, time shall be given to embody such exception in a written bill. The reason for requiring the offering attorney to state his exceptions to the trial court’s ruling is to inform the trial judge of the attorney’s claim of admissibility, and by having such exception in writing, it permits the appellate court to understand the scope and the effect of such ruling. On appeal an exception to the trial court’s ruling on the admissibility of evidence, briefly stated, is necessary, unless the statement of facts contains all of the evidence requisite to explain the bill. This permits the reviewing court: 1) to determine the character and nature of the disputed evidence that was excluded; 2) to estimate the influence that such evidence might have in proving up the essential elements of plaintiff’s case (or the opposing attorney’s defense); and 3) to determine the substantial fact issues to which it relates.

The plaintiff argues here on this appeal that it was impossible for him to offer a bill of exceptions since there was no court reporter. This is not true. The attorney can, and the trial court must allow the attorney to make his bill of exceptions. Smith v. State, 490 S.W.2d 902, at page 908 (Tex.Civ.App. — Corpus Christi 1973, writ ref’d n. r. e.). This would be the same either with or without a court reporter being present. The appellant (plaintiff) should have offered the deposition into evidence on his bill of exceptions. He should have stated to the court what he believed the evidence would prove, and what the testimony of the witness would have been. One of the purposes of the bill is to show what the answer of the witness would have been to the question or questions propounded. After the trial, the bill of exceptions should have been reduced to writing and presented to the trial court, for his approval as to substance and form, and signed by the trial judge. The rule provides for the guarantee of the accuracy of such exceptions. In the absence of such a bill of exceptions, no error on the part of the trial court is shown on appeal. Without this bill before us, we have no way of knowing actually what transpired. See LeNoble v. Weber, Hall, Cobb and Caudle, Inc., 503 S.W.2d 321 (Tex.Civ.App. — Tyler 1973, no writ).

The plaintiff continues to argue that we should pass upon the deposition testimony because the written interrogatories and answers thereto were ordered by him to be placed in the transcript and are now before this Court on appeal for our inspection. This does not comply with the proper form of a bill of exceptions and as such does not preserve the same for appellate review. See Bowles v. Bourdon, 213 S.W.2d 713 (Tex.Civ.App. — Galveston), aff’d, 148 Tex. 1, 219 S.W.2d 779 (1949). See McCormick & Ray, 2d Ed. Vol. 1, § 21 to § 30, pages 18-32. With no statement of facts and no bill of exceptions, this Court is without authority to review plaintiff’s appeal based upon the trial court’s ruling on plaintiff’s evidence.

There being no reversible error, the judgment of the trial court is affirmed.