NO. 1972-13 ·
IN THE
SUPREME COURT OF TEXAS
BENEVOLENT INSURANCE GROUP,
Petitioner,
v.
MARY PAINE, ET VIR,
Respondent • .
PETITIONER'S APPLICATION
. FOR · WRIT OF ERROR
,
,Texas Tech University
School of Law
Lubbock, Texas .
. June 16, 1972
Grover Hartt, III
James Max Moudy
Frank W. Sullivan, III
ATTORNEYS FOR PETITIONER
SUBJECT INDEX
page
Index of Authorities • • •
iii
•
Statement of Jurisdiction
1
•
,Statement of the Case
•
•
•
1
Points of Error
2
Statement of Facts
2
Summary of Argument
4
Argument and Authorities
1.
•
5
THE COURT OF CIVIL APPEALS ERRED IN AFFIRMING THE
TRIAL COURT'S DECISION TO DISREGARD SPECIAL ISSUES
16, 17, 18 and 19 BECAUSE THE RESPONDENT WAS UNDER
A DUTY TO WEAR HER AVAILABLE SEAT BELT • • • • • • •
5
A.
The duty of a person to prevent injury to himself, or to avoid compounding those injuries
inflicted by another, is a well-established
rule of law in Texas. . . . . . . . . . . . .
1.
2.
3. '
B.
The effectiveness of seat belts is a matter
ot' judicial notice. . . ... . . . . . . . .
7
Recent decisions indicate that there is, or
or should be, a duty to fasten an available
seat belt . . . • . • . . . . • . . • . •
9
Respondent " could have foreseen the consequences of her ommission and therefore
failed to act as a reasonably prudent
person. . . . . . . . . . . . . . .
•
•
•
•
•
• •
•
•
•
•
•
•
•
•
THE COURT OF CIVIL APPEALS ERRED IN AFFIRMING THE
TRIAL COURT'S REFUSAL TO PERMIT PETITIONER TO
CROSS-EXAMINE AT TRIAL THE PHYSICIAN WHOSE DEPOSITION TESTIMONY WAS INTRODUCED BY RESPONDENT • •
A.
12
Breach of the duty to wear an available seat
belt should be considered in mitigation of
damages •
,II.
6
Denial of the valuable right of cross-examination constitutes reversible error • '. • • • • •
14
19
19
B.
Where the effect of admitting a deposition is
to deny the right of cross-examination, such
action constitutes an abuse of the trial
judge's discretion . • . • • . . • • •
23
Rigid application of the rule against impeaching one's own witness would produce an
inequitable result.
31
....
C.
Conclusion and Prayer
'.
Certificate of Service
Appendix A
Appendix B
..
•
• •
,
.
35
36
•
37
"
•
•
ii
•
•
38
INDEX OF AUTHORITIES
Cases
page
A.B.C. Stores, Inc. v. Taylor, 136 Tex. 89, 148 S.W.2d
392 (1941) • • •
13
Adams v. Arnold, 12 Mod. 375, 90 Eng. Rep. 1064 (1700).
31
American General Insurance Co. v. Jones, 152 Tex. 99,
255 S.W.2d 502 (1953). • . . • • . • . • • • • •
33
Barrios v. Davis, 415 S.W.2d 714 (Tex. Civ. App.-Houston [1st Dist.l 1967, no writ) . . • • •
20
..................
Bentz1er v. Braun, 34 Wis. 373, 149 . N.W.2d, 626 (1967) • • 7,9
Bernard's, Inc. v. Austin, 300 S.W. 256 (Tex. Civ. App.-Dallas 1927, writ ref'd) • • • •
27, 29
Boetge v. Landa, 22 Tex. 105 (1858)
• •
24
Clary v. Morgan Motor Co., 246 S.W.2d 936 (Tex. civ.
App.--Fort Worth 1952, no writ)
• ••
•• • •
30
Cook v. Denike, 216 S.W. 437 (Tex. Civ. App.--San
Antonio 1919, writ dism'd) • • • .
26, 27, 28, 29, 31, 34
Eastern Texas Ry. Co. v. Scurlock, 97 Tex. 305, 78 S.W.
490 (1904) • • •
. • • • • • • ';
19
Elliot v. Mitchell, 28 Tex. 105 (1866).
24
Evansich v. G. C. & Santa Fe Ry. Co., 61 Tex. 24 (1884)
20
Fenner v. American surety Co. of New York, 156 S.W.2d
279 (Tex. Civ. App.--Waco 1941~ writ ref'd w.o.m.)
28
..
Forbes v. Hejka1, 271 S.W.2d 435 (Tex. Civ. App.--Da11as
1954, writ dism'd) . . . . . . . . . . . . . . . .
30
Fort Worth & D. C. Ry. Co. v. Daggett, 87 Tex. 322,
285 S.W. 525 (1894). • • • . • • • • • •
16
Glover v. Daniels, 310 F. Supp. 750 (1970).
10
• • • •
Hammett v. McIntire, 365 S.W.2d 844 (Tex. Civ. App.-Houston 1962, writ ref'd n.r.e.) • • • • • • • • •
19
Harrison v. Orr, 296 S.W. 781 (Tex. Comm'n App. 1927,
j dgmt adopted) . . . .
.... . . . . . . . . ..
25
iii
INDEX OF AUTHORITIES -
(Continued)
page
Henderson v. United States, 439 F.2d 588 (10th Cir .• 1970).
Hittson v. State National Bank, 14 S.W. 780 (Tex. 1890)
9
•
25
Holt v. Guerguin, 106 Tex. 185, 163 S.W. 10 (1914) · • • 25, 27
Hord v. Gulf, C. & S. F. Ry. Co., 76 S.W. 227 (Tex.
Civ. App.--Fort Worth 1903, no writ) • •
Horton v. Houston & T. C. Ry. Co., 103 ~.W. 467 (Tex.
Civ. App.--Galveston 1970, writ ref'd) • . •
Husted v. Refuse Removal Service, 26 Conn. Sup. 494,
227 A.2d 433 (1967) . • . • . . • • . . • . •
·.
34
• •
20
·.
9
Industrial Fabricating Co. v. Christopher, 220 S.W.2d
281 (Tex. Civ. App.-- Galveston 1949, writ ref'd
n.r.e.). . . • • • • • • • .
28, 29, 30, 31, 34
Kavanagh v. Butorac, 221 N.E.2d 824 (Ill. App. 1966).8, 9, 17
Linton v. Jones, 462 S.W.2d 636 (Tex. Civ. App.-Tyler 1971, go writ) . • .
••••
• •••
·.
McClure v. Heirs of Sheek, 68 Tex. 426, 4 S.W. 552
(1887)
• '. . . . . . . . . . . • ". . . . . . .
22
• 24, 27
Mitchell v. Mitchell, 157 Tex. 346, 303 S.W.2d 352 (1957).
18
Morgan v. Stringer, 120 Tex. 220, 36 S.W.2d 468 (1936).
33
Motto v. United States, 360 F.2d 643 (Ct. Cl. 1966)
•
Moulton v. Alamo Ambulance Service, Inc. 414 S.W.2d
444 (Tex. 1967).
. . . . . . . . . . . . . •
15
Mount v. McClellan, 234 N.W.2d 329 (Ill. App. 1969)
9, 17
O'Connor v. Andrews, 81 Tex. 28, 16 S.W. 628(1891)
.25, 27
17
Parr v. Parr, 207 S.W.2d 187 (Tex. Civ. App.-Amarillo 1947, writ ref'd n.r.e.).
Paxton v. Boyce, 1 Tex. 317 (1841) . • •
28
•
33
· Polasek v. Quinius, 438 S.W.2d 828 (Tex. Civ. App.-Austin 1969, writ ref'd n.r.e.). . • • • • • • • •
11
iv
INDEX OF AUTHORITIES -
(Continued)
page
Quinius v. Estrada, 448 S.W.2d 552 (Tex. Civ. App.-Austin 1968, writ ref'd n.r.e.). • • .
Randall v. Collins, 52 Tex. 435 (1880). .
.
8,11
.
24
Reavis v. Taylor, 162 S.W.2d 1030 (Tex . Civ. App.-Eastland 1942 , writ ref'd n.r.e.) . . . • • . . ,
.16, 17
Red Top Taxi Co. v. Snow, 452 S . W.2d 772 (Tex. Civ.
App.--Corpus Christi 1970, writ ref'd n.r.e.).
10
Rudes v. Gottschalk, 159 Tex. 552, 324 S . W.2d 201 (1959).
12
St. Louis & S. F. R. Co. v. Matlock, 141 S.W. 1067
(Tex. Civ. App.--Dallas 1911, writ ref'd) • • •
•
22
• •
9
Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154 (1966)
•
San Antonio Brewing Asso . v. Wolfschohl, 155 S.W. 644
(Tex. Civ. App.--San Antonio 1913, writ ref'd)
• •
13
Schmick v. Noel, 64 Tex. 406 (1885)
24
.
.....
•
• • •
Sonnier v. Ramsey, 424 S.W.2d 684 (Tex. Civ. App.-Houston [1st Dist.] 1968, writ ref'd n.r.e.) • • 11, 15, 17
•
Texas & P. Ry. Co. v. Pierce, 30 S.W. 1122 (Tex . Civ .
App.--Dallas 1895, no writ)..
• •••••••••
16
Tom Brown Drilling Co. v. Neiman, 418 S.W.2d 337 . (Tex .
Civ. App.--Eastland 1967, writ ref'd n.r.e.) • • • •
10
United States v . Carroll Towing C~., 159 F.2d 169
(2d" eire 1947) . . . .
••. • . . . . •
..
6
United States v. Freeman, 302 F.2d 344 (2d Cir. 1962)
32
Vernon v. Droeste, No. 17,205, 85th Jud. Dist. Ct. (1966).
15
Wentworth v. Crawford, 11 Tex. 127 (1853)
• • • • • ••
20
Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195 (1866)
14
Statutes
31
CALIF. EVIDENCE CODE, § 785 • • • •
ILL. REV. STATS , 1967, C. 110,
§
v
60
•
• • • • •
• •
31
INDEX OF AUTHORITIES -
(Continued)
page
KAN SAS CODE OF CIVIL PROCEDURE, § 60-420 .
32
MASS. LAWS ANNOT. 1959, c. 223 § 23
32
NEW JERSEY EVIDENCE RULE 20 • • •
•
N. M. STATS. ANNOT. 1953, 20-2-4, 642
N. Y. CPLR § 4514 (McKINNEY 1963)
32
•
32
•
..
• • •
TEX. REV. CIV. STAT. ANN. art. 6701(k)
32
•
(Supp. 1966)
5
TEX. R. CIV . P. 192
21
TEX. R. CIV. P. 213 •
• •
•
TEX. R. CIV. P. 301 •
•
18
• •
32
•
12 VT. STATS. ANNOT. 1959, §§ 1641(a) , 1642
23 .
•
Miscellaneous
Annot. , 15 A.L.R.3d 1428 (1967)
..
APPLEMAN, CROSS-EXAMINATION (1965).
'.
•
Comment, The Seat Belt Defense--A New Approach, 38
FORDHAM L. REV. 94 (l969)
•..••.•..
•
EHRLICH, THE LOST ART OF
CROSS-EX~INATION
8
•
5, 16
(1970)
Franki, Discovery, 13 TEX. B.J. 447 (1950). • •
23
23
•
25
Gagen, Seat Be lts: No Longer Why, But Why Not, 38
TODAY i S HEALTH 1960 . . • • • • • • . . • . • • •
8
Garrett & Braunstein, M.D., The Seat Belt De£ense,
2 J. OF TRAUMA 220 (1962). . • • • . . • • • • •
8
HIGHWAY SAFETY FOUNDATION & OHIO STATE HIGHWAY PATROL,
A STUDY OF SEAT RESTRAINT USE AND EFFECTIVENESS IN
IN TRAFFIC ACCIDENTS (1970). • • • • .
• • ••
7
JORDAN, TRIAL HANDBOOK FOR TEXAS LAWYERS, § 116 (1971).
19
R. Keeton, Proprietorship of Deponents, 68 HARV. L.
REV. 600 (1955) . . . . . . . . • . . . • . . • • . • 23, 34
vi
INDEX OF AUTHORITIES -
(Continued)
page
Kliest, The Seat Be lt Defense--An Exercise in Sophistry,
18 HASTINGS L.J. 613 (1969). . . . . . . . . . • • ••
Ladd, 1m eachment of One's Own Witness - New Develo ments,
U. CHI. L. REV.
8
.31, 33
McCORMICK, DAMAGES, S 33 (1927)
15
McCORMICK, EVIDENCE,
32
§
38 (1972).
1 McCORMICK & RAY, TEXAS LAW OF EVIDENCE, SS 632, 637
(1956)
. • • . . • • • . . . . • . . . • • . • • . . 31, 33
2 McDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY
COURTS, S 10.02.17 (1970 rev.)
•
NADER, UNSAFE AT ANY SPEED (1965)
25
•
7
Proposed Rules of Evidence for the U. S. District
Courts and Magistrates (1971) • • •
PROSSER, LAW OF TORTS,
§
32, 65 (1971).
32
• 6, 14, 15
22
REED, CONDUCT OF LAWSUITS (1912) ••
Snyder, The Seat Belt As a Cause of IAjury, 53 MARQ. L.
REV. 211 (1970). • . • • • • • •
STEVENSON, SUCCESSFUL CROSS-EXAMINATION (1971).
Thode, Some Reflections on the 1957 Amendments to the
Texas Rules of civil Procedure PertaLnLng to WLtnesses at Trial De ositions and Discover • 37 TEX.
L. REV.
1958
........•........•
8
•
23
..
25
Thode, Stare Decisis--Another View, 26 TEX. B.J. 197
(1963)
18
•.........
Walker & Beck, Seat Belts and the Second Accident, 34
INS. COUNSEL J. 349 (1967)
• . • . • • . • •.
.7, 8
3A WIGMORE, EVIDENCE, § 897, 898, 899, 901 (Chadbourn
rev. 1970) • . • • • • • • . .
.32, 33
5 WIGMORE, EVIDENCE,
§
1367 (1940) • . • • • • • • • • • •
vii
21
NO. 1972-13
IN THE
SUPREME COURT OF TEXAS
,BENEVOLENT INSURANCE GROUP,
Petitioner,
v.
MARY PAINE, ET VIR,
Respondents.
PETITIONER'S APPLICATION
FOR WRIT OF ERROR
To the Honorable Supreme Court of Texas:
STATEMENT OF JURISDICTION
, The jurisdiction of this court is proper under Rule V(b)
•
of the Rules Governing the State Bar of Texas Moot Court Competition, Revised January, 1972.
STATEMENT OF THE CASE
Respondent, Mary Paine, brought suit in the 190th Judicia1 District Court of Harris County for per's onal injuries
sustained in an automobile accident with Craig Martin.
The
suit was brought against the Petitioner, Respondent's insurer,
unde,r the , "Family Protection Coverage" of the insurance contract.
The trial court disregarded the jury's answers to
2
special issues which found the Respondent breached the duty
to wear her available seat belt and that such breach was the
proximate cause of 100% of her injuries.
Judgment was entered
non obstante veredicto for Respondent in .t he sum of $10,000.
Petitioner's motion for a new trial was denied and the
Court of Civil Appeals for the First Supreme Judicial District
affirmed the judgment of the trial court.
Because the errone-
ous . decisions below were prejudicial, Petitioner now submits
this application for writ of error.
STATEMENT OF POINTS OF ERROR
I.
THE COURT OF CIVIL APPEALS ERRED IN AFFIRMING THE TRIAL
COURT'S DECISION TO DISREGARD SPECIAL ISSUES 16, 17, 18
AND 19 BECAUSE THE RESPONDENT WAS UNDER A DUTY TO WEAR
HER AVAILABLE SEAT BELT.
II.
THE COURT OF CIVIL APPEALS ERRED IN AFFIRMING THE TRIAL
COURT'S REFUSAL TO PERMIT PETITIONER TO CROSS-EXAMINE
AT TRIAL ,THE PHYSICIAN WHOSE DEP~SITION TESTIMONY WAS
INTRODUCED BY RESPONDENT.
STATEMENT OF FACTS
The Respondent, Mary Paine, sued the Petitioner, Benevo-
lent Insurance Group, in the 190th,Judicial District Court of
Harris County for injuries she received in a collision with
Craig Martin, an uninsured motorist.
The accident occurred
on June 14,1970, in Houston, Texas (R. 1). Respondent based
her claim on the Family Protection Coverage of the policy of
insurance issued by Petitioner.
Under that contract, Peti-
tioner assumed liability for:
All sums which the insured shall be legally entitled
to recover as damages from the owner or operator of
an uninsured automobile because of bodily injury. • •
sustained by the insured caused by accident and arising
out of the ownership, maintenance or use of such
uninsured automobile (R. 2).
3
In response to special issues, the jury found that at
the time and occasion in question a person of ordinary prudence acting in the exercise of ordinary care would have
fastened his seat belt, that Mrs. Paine did not have her seat
belt fastened, and that the failure to fasten her seat belt
was a proximate cause of 100% of her injuries (R. 12).
It
was therefore concluded by the jury that Petitioner was not
liable under its contract of insurance because the Respondent
was not "legally entitled" to recover anything.
To establish that Mrs. Paine received injury, the Respondent introduced the deposition of Dr. Tes T. Fier (R. 7).
Following admission of the deposition into evidence, the
Respondent rested her case and Petitioner called Dr. Fier, who
was available in court, to the stand (R. 8).
The Petitioner's
.
purpose, as "reflected
in the bill of exceptions, was to elicit
,
information which would have shown that Dr. Fier had not examined the Respondent in over a year and a half, that he often
testified favorably on behalf of plaintiffs in personal injury
actions, and that at least half of his patients were referred
to him by plaintiffs' attorneys (R. 9-9a).
Upon objection by
the Respondent, however, the trial court ruled that Dr. Fier
was the Petitioner's witness, and not subject to impeachment
(R.
8).
The trial court disregarded the jury's answers to special
issues 16, 17, 18 and 19 and entered judgment non obstante
ver"e dicto for the "Respondent in the sum of $10,000 (R. 14).
Petitioner' "s motion for new trial having been overruled (R. 16),
4
an appeal was taken to the Court of Civil Appeals for the
First Supreme Judicial District.
That court "summarily" con-
sidered and affirmed the decision of the trial court (R. 17-18).
SUMMARY OF ARGUMENT
Both of Petitioner's points of error relate directly to
the question of damages.
Recent cases, common law principles,
and the declared public policy for encouraging utilization of
available seat belts dictate that any injuries suffered by
Mary Paine were damages for which the Petitioner should not be
held responsible.
Mary Paine breached the duty to prevent injury to herself,
or to avoid compound"i ng those injuries inflicted by another,
when she failed to fasten her available seat belt.
While rigid
application of ,contributory negligence,principles might lead to
an unusually harsh result in future cases, the Texas courts
have a viable alternative in that they can consider breach of
the duty to fasten seat belts in mitigation of damages •
•
Dr. Fier's deposition was the only
evidence introduced by
the Respondent to prove the nature and extent of her injuries.
Petitioner's intended impeachment would have undermined his
credibility with the jury, thus weakening the inference of "
damages.
Impeachment for interest and bias was within the
proper scope of cross-examination, the denial of which was
reversible error.
Although the trial court had discretion to admit the deposition of the available Dr. Fier, this discretion was abused
when its exercise precluded the right of cross-examination.
5
Even if it is held that Dr. Fier became Petitioner's witness
by testifying in person, the rule against impeaching one's own
witness should not apply.
ARGUMENT AND AUTHORITIES
I.
THE COURT OF CIVIL APPEALS ERRED IN AFFIRMING THE TRIAL
COURT'S DECISION TO DISREGARD SPECIAL ISSUES 16, 17, 18
AND 19 BECAUSE THE RESPONDENT WAS UNDER A DUTY TO WEAR
HER AVAILABLE SEAT BELT.
Given the high incidence of automobile accidents and the
multitude of cases litigated, the question of whether the failure to utilize available safety equipment constitutes a defense
to a negligence action has been raised in a number of jurisdictions.
One of the most controversial and pervasive issues
relates to the validity of the seat belt defense.
Traditionally, the seat belt defense has been urged on
one of three theories:
(1) that failure to wear an available
seat belt constitutes negligence per se, a duty having arisen
by implication of legislative intent in enacting safety equipment installation laws;
(2) that failure to wear an available
•
seat belt constitutes contributory negligence and is therefore
a complete bar to any recovery by the plaintiff; or,
(3) that
the failure to fasten an available seat belt operates to mitigate the damages.
Comment, The Seat Belt Defense--A New
Approach, 38 FORDHAM L. REV. 94
(1969).
In Texas, the legislature has enacted a statute requiring
installation of seat belts in all automobiles manufactured
with seat belt anchorages in the floor.
ANN. art. 6701 (k)
(Supp. 1966).
TEX. REV. CIV. STAT.
There is probably no basis,
6
howeve r, in construing the legislative intent to mean that
failure to wear a seat belt would be negligence per se and the
Petitioner will not raise that issue.
Nevertheless, the seat
belt defense is clearly valid when considered either under the
doctrine of contributory negligence or by applying it in mitigation of damages.
A.
The duty of a person to prevent injury to himself,
or to avoid compounding those injuries inflicted
by another, is a well-established rule of law in
Texas.
Perhaps the most fundamental maxim in tort law is that
which says a person is expected to conform with the conduct
of a reasonably prudent man in the same or similar circumstances.
PROSSER, LAW OF TORTS, S 32 (4th ed. 1971).
In the
classical analysis of what constitutes a reasonable standard
of conduct, 'J udge Learned Hand
bala~ced
the "burdenof ade-
q-uate precautions against the probability and gravity of the
injury."
United States v. Carroll Towing Co., 159 F.2d 169
(2d Cir. 1947).
•
Imposition of a duty to wear seat belts is the logical
conclusion reached by making three observations.
First, seat
belts are effective to prevent injuries; and therefore the
reasonable man would wear one.
Second, an analysis of develop-
ing case law suggests that the trend is toward imposition, in
one form or another, of the duty.
Third, the Respondent in
this case fully appreciated the purpose for which seat belts
were designed and should have, when the gravity of the harm is
weighed against the burden of adequate precautions, foreseen
the need to provide for her own safety.
7
1.
The effectiveness of seat belts is a
matter of judicial notice.
Billboards strategically placed on urban freeways, catchy
radio jingles, television commercials, newspaper and magazine
advertisements, circulars placed in residential doorways, and
statutes requiring seat belt installation, all have one thing
in common.
They are part of the massive declaration of public
policy toward encouraging seat belt use which resulted from
conclusions by leading safety experts that seat belts save
lives.
At least one study estimates that use of seat belts would
prevent 5,000 deaths a year.
NADER, UNSAFE AT ANY SPEED, (1965).
Another says front 's eat passengers not wearing seat belts are
more than five times as likely to be killed or injured as those
wearing belts.,
HIGHWAY SAFETY FOUNDATION & OHIO STATE HIGHWAY
•
PATROL, A STUDY OF SEAT RESTRAINT USE AND EFFECTIVENESS IN
TRAFFIC ACCIDENTS (1970).
(See Appendix A)
A National Safety
Council study of fatal accidents over two holiday periods in
1965 showed that the fatality rate'among seat belt users was
three-fourths lower than that of non-users.
Walker & Beck,
Seat Belts and the Second Accident, 34 INS. COUNSEL J. 349
(1967) •
The courts in several jurisdictions have taken judicial
, notice of the seat belt's effectiveness.
In Bentzler v. Braun,
34 Wis. 373, 149 N.W.2d 626 (1967), the court found that it
was' "obvious" that persons using seat belts were less likely to
sustain injury.
Even more explicit was a Texas decision saying,
" • • • , the wearing of a seat belt is relevant , to the safety or
8
protection of the person wearing it, as is shown by the authorities generally and which we take notice as a matter of law."
Quinius
v. Estrada, 448 S.W.2d 552 (Tex. Civ . App.--Austin
1968, writ ref'd n.r.e.).
The court in Kavanagh v. Butorac,
221 N.E.2d 824 (Ind. App. 1966), ruled that studies on the
effectiveness of seat belts did not have to be admitted under
the rules of evidence because they were matters of judicial
notice.
Of course, there are those who have argued against the
seat belt's effectiveness.
Kliest, The Seat Belt Defense--An
Exercise in Sophistry, 18 HASTINGS L.J. 613 (1969).
Common
assaults on the duty are based on the erroneous assumption
that seat belts would trap a person in a burning or submerged
vehicle, Annot., 15 A.L.R.3d 1428 (1967); or that the belts
themselves may cause abdominal or pelvic injuries.
Snyder,
The Seat Belt As a Cause of Injury, 53 MARQ. L. REV. 211 (1970).
These assertions are unfounded.
Fears of being trapped
in a burning or submerged vehicle,. though real, are not
rational.
For fire occurs in only two-tenths of one percent,
and submersion in only three-tenths of one percent of all
injury-producing accidents.
Gagen, Seat Belts:
But Why Not, 38 TODAY'S HEALTH 1960.
No Longer Why ,
Moreover, in the over-
whelming number of cases, seat belts have failed to produce any
injury to the abdomen or pelvic area.
Garrett & Braunstein,
M.D., The Seat Belt Defense, 2 J. OF TRAUMA 220 (1962); Walker
& Beck, Seat Belts and the Second Accident, 34 INS. COUNSEL J.
349, 352 (1967).
9
Petitioner does not propose, however, to wage a battle
of statistics.
The factual questions as to whether or not
seat belts are effective, and whether or not utilization of
them would have prevented the Respondent's injuries, have
already been resolved in Petitioner's favor by the jury (R. 12).
Given the effectiveness of seat belts, the question now turns
to whether or not there is sufficient authority to impose a
duty to wear them.
2.
Recent decisions indicate that there is, or
should be, a duty to fasten an available
seat belt.
Perhaps the first case to consider the seat belt defense
was Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154 (1966), where
the court determined that the question was an issue to be decided by the jury in light of all the facts and circumstances
adduced at trial.
A stronger approach was taken in Bentzler
v. Braun, 34 wis. 373, 149 N.W.2d 626 (1967), where, in applying the due care standard, the duty was found to exist as a
matter of law.
An Illinois court, in Mount v. McClellan, 234
,
N.W.2d 329 (Ill. App. 1969) found a duty but construed its
breach as applicable to mitigation of damages and not liability.
See Also: Kavanagh v. Butorac, 221 N.E.2d 824, (Ind. App. 1966).
In Husted v. Refuse Removal Service, 26 Conn. Sup. 494,
227 A.2d 433 (1967) the Superior Court of Connecticut said the
question was one of "mixed law and fact," involving the determination of the standard required and its application to the
facts of the particular ' case.
A federal decision, Henderson v.
United States, 429 F.2d 588 (10th Cir. 1970), recognized the
defense, saying that it was not error for the federal district
10
court to allow it in mitigation of damages.
See Also:
Glover
v. Daniels, 310 F. Supp. 750 (1970).
In general, the Texas decisions which have considered the
seat belt defense reflect those opinions rendered in other
jurisdictions.
While most of the courts of civil appeals
would seem to agree that some duty exists; they differ in its
application.
In Red Top Taxi Co. v. Snow, 452 S.W.2d 772 (Tex. Civ.
App.--Corpus Christi 1970, writ ref'd n.r.e.), the court rejected the defense, not because of invalidity of the principle
itself, but on grounds that there was no evidence to authorize
the submission of special issues.
The defendant's evidence in
that case consisted of testimony of a physician who concluded
that he really did not know about the matter and could not
testify with any certainty.
•
Petitioner in the case at bar, however, introduced evidence of a res gestae statement, made by the Respondent to
the investigating police officer, in which she" told him that
she had not been wearing her seat belt (R. 6).
Testimony was
also introduced by Respondent's own expert witness, Dr. Tes T.
Fier, who in answer to a hypothetical question concluded that
if Respondent had been wearing her available seat belt, she
would have received no injury.
Another decision denying imposition of the duty was Tom
Brown Drilling Co. v. Neiman, 418 S.W.2d 337 (Tex. Civ. App.-Eastland 1967, writ ref'd n.r.e.).
The court acknowledged that
it was not able to decide which line of Texas authority should
11
be followed because there was not enough evidence to support
the submission of special issues.
Using a familiar rationale, the court in Polasek v.
Quinius, 438 S.W.2d 828 (Tex. Civ. App.--Austin 1969, writ
ref'd n.r.e.) ,determined that because there was no evidence
as to whether or not the plainti ff was wearing a seat belt,
submission of special issues would have been improper.
It
is significant that in that case, as . in the one at bar, the
evidence consisted of testimony by the investigating police
officer.
In Polasek, the police reported no res gestae admis-
sions by the driver, but in this case Officer T. U. Smart
testified that Respondent admitted, shortly after the accident,
that she was not wearing her seat belt (R. 6).
In Sonnier v. Ramsey, 424 S.W.2d 684
(Tex. Civ. App.--
•
Houston [1st Dist.] 1968, writ ref'd n.r.e.) the defense was
. raised to determine only the issue of liability.
Concluding
that the result of applying Texas' rigid no-recovery contributory negligence rule would be too harsh, the court found
that if there is a duty to wear an available seat belt, it
should sound in damages. That decision is further elaborated
under subpart B, regarding the mitigation of damages theory.
Lack of forseeability was the basis for rejecting imposition of the defense in Quinius v. Estrada, 448 S.W.2d 552 (Tex.
Civ. App.--Austin 1969, writ ref'd n.r.e.).
Considering the
bizarre fact situation in that case, it is no wonder that the
events were not forseeable.
There, the defendant was sued on
grounds that failure to wear a seat belt caused her to lose
12
control of her vehicle, after it had been struck by still
another vehicle.
While it may be difficult to foresee the
complicated sequence of events that transpired in that case,
anyone can foresee that failure to wear an available seat belt
would, in an accident, be very likely to subject the occupant
to second-impact injuries.
3.
Respondent c o uld h a ve foreseen the consequences
of her ommission and therefore failed to act
as a reasonably prudent person.
Foreseeability is an essential consideration in determining what a reasonable man would have done under the circumstances.
"The prudent man would not do that which would result in harm."
Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959).
At the trial, the Respondent was asked if she knew the
purpose of seat belts.
She acknowledged that the purpose was
to prevent a person from being thrown around in his vehicle,
•
and that she had seen some of the advertisements on television
about fastening them (R. 5).
Therefore, by her own admission,
the Respondent has shown that the potential consequences of
failing to wear a seat belt had, at one time or another, been
brought to her attention and she had nevertheless failed to
heed the warnings.
While Mrs. Paine expressed fear of being
trapped in a burning vehicle, it is significant that she also
admitted that she sometimes wore seat belts (R. 5).
If she
was genuinely afraid of being trapped by her seat belt, it is
peculiarly inconsistent that she would occasionally wear one.
If Judge Hand's weighing of the interests test is to be
used, it is clear that the inconvenience incurred in fastening
13
a seat belt (the "burden of adequate precaution") seems trivial
when compared to death or disability (the "gravity of the
injury") .
Certainly no reasonable person could be oblivious to the
fact that each time he steps into a car, he is exposed to the
risk of accident.
Rationaliz a tion of negligence in terms of
inconvenience or imag ine d dangers does not conform to the
standard of due care.
The Respondent knew what seat belts are
designed to do, and she foresaw or should have foreseen, the
consequences of her ommission.
Given the duty and its breach,
the next consideration is the application of those factors to
the issues of liability and damages.
Texas, rigid in its application of contributory negligence
doctrine, bars any recovery by a plaintiff if his injuries have
been caused in whole or in part by a ' failure to use due care
for his own safety.
defense.
Contributory negligence is an absolute
A.B.C. Stores, Inc. v. Taylor, 136 Tex. 89, 148
S . W.2d 392 (1941).
•
The Respondent was under a duty to wear her available seat
belt, and she breached that duty.
The jury found, as a matter
of fact, that the breach of that duty was the proximate cause
of 100% of her injuries (R. 12).
The result of that determin-
ation, under contributory negligence doctrine, would leave but
one alternative in future cases.
Injured plaintiffs, no mat-
ter how negligent the other party may be, would be denied any
recovery.
San Antonio Brewing Asso. v. Wolfschohl, 155 S.W.
644 (Tex . Civ. App.--San Antonio 1913, writ ref'd).
14
While contributory negligence may be applicable to this
case, the jury having denied Respondent any recovery, Petitioner realizes that such a finding could lead to unusually harsh
results in future cases.
The alternative to barring all
recovery is for the court to consider the evidence of failure
to wear an available seat belt in mitigation of damages.
B.
Breach of the duty to wear an available seat belt
should be considered in mitigation of damages.
There are circumstances when the plaintiff's unreasonable
conduct, though prior or contemporaneous with the negligent
act of another, may be found to have caused only a separable
part of the damage.
"In such a case, even though it is
called contributory 'negligence, an apportionment will be made."
PROSSER, LAW OF TORTS,
§
65, at 423 (4th ed. 1971).
.
This principle, whether phrased in terms of avoidable
,
consequences or mitigation of damages, should be adopted in
situations, such as the one at bar, where sufficient evidence
exists to reduce the defendant's liability by the amount of
damages for which the plaintiff was-responsible.
In a situation where the plaintiff's prior conduct has
played no part in bringing about the accident itself, but
aggravated the damages, his recovery should be reduced by the
amount that they were increased by the antecedent negligence.
Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195 (1866).
Prosser adopts this as the better view, saying that the distinction between the mitigation of damages approach and
contributory negligence lies in being able to establish damages
which are attributable to separate causes and those which are
15
not.
PROSSER, Id.
§
65.
Mitigation of damages has been defined as, "a reduction
of the amount of damages by proof of facts.
which show
that the plaintiff's conceded cause of action does not entitle
him to so large an amount as would otherwise justify the jury
in allowing him."
Cl. 1966).
Motto v. United States, 360 F.2d 643 (Ct.
The doctrine of avoidable consequences is called,
"a rule of damages by which certai'n items of loss may be excluded from consideration."
127 (1935).
McCORMICK, DAMAGES, S 33 at p.
Any attempt to distinguish these two terms would
appear to be futile; for practical purposes they will be considered synonymous .
In seat belt cases, mitigation of damages
has been suggested as one means for ' solving the very difficult
problem of compensating an injured plaintiff, wronged by the
•
negligent act of another, who has contributed to his own injuries.
Vernonv. Droeste, No. 17,205, 85th Jud. Dist. Ct.
(1966).
Another distinction commonly made between contributory
negligence and mitigation of dama~es is that the duty to avoid
compounding injury is usually said to arise after a legal wrong
has been done, but while some damages can still be avoided.
This "time sequence problem" was considered by the court in
Sonnier v. Ramsey, supra.
That decision pointed out that the
problem posed by negligence antecedent to the occurrence of
the legal wrong, would make application of the doctrine of
avoidable consequences questionable.
The court concluded,
nevertheless, that breach of the duty to wear a seat belt sounds
in damages and not liability.
16
One writer has suggested that the s olution is to create
a legal fiction.
The duty to fasten wou ld not be said to arise
until after the time of t he accident.
Comment, The Seat Belt
Defense--A New Approa c! , 38 FORDHAM L. REV. 94 (1969).
In
light of the need fo r modification of the strict no-recovery
stance, the propriety of creating an exception to the general
rule is apparent.
There is ample precedent in Texas, though applied to contributory negligence doctrine, for the imposition of a duty to
avoid harm, before its actual occurrence.
In Texas & P. Ry.
Co. v. Pierce, 30 S.W. 1122 (Tex. Civ. App.--Dallas 1895, no
wri~,
the plaintiff sued for injuries sustained by exposure to the
elements 'when the railroad company failed to open its depot.
The court said that it was the plaintiff's duty to take precautions to protect herself from the 1nclement weather, even
though the legal wrong had not yet occurred.
The general Texas rule, as expressed in Fort Worth & D. C.
Ry. Co. v. Daggett, 87 Tex. 322,
~85
S.W. 525 (1894) is that,
"where one is injured by the negligence of another, the person
injured must use all reasonable means at his command to avert
or lessen the damage."
In Reavis v. Taylor, 162 S.W.2d 1030
(Tex. Civ. App.--Eastland 1942, writ ref'd n.r.e.) the mitigation of damages principle was recognized as being supplementary
to the general rule that a wrongdoer is responsible for the
natural and proximate consequences of his misconduct in that
the degree of those consequences may be left to the jury.
The
consequence of failing to avoid compounding injury is reduction
17
in the amount of recovery.
~,
Moulton v. Alamo Ambulance Service,
414 S.W.2d 444 (Tex. 1967).
Cases like Reavis and Sonnier recognize that the mere fact
of negligence antecedent to occurrence of the legal wrong
should not bar a valid defense in situations where the damages
that can be attributed to one cause are separable from those
attributable to another.
Perhaps no set of circumstances
would be more appropriate for application of a modified rule
than those in which failure to wear an available seat belt has
either barred recovery by an injured plaintiff, or . forced the
negligent defendant to pay more than fair compensation.
The court in Mount v. McClellan, 234 N.E.2d 329 (Ill. App.
1969) found that the time sequence problem was really no problem at all.
The time sequence issue did not prevent a holding
•
that failure to wear seat belts would be considered under mitigation of damages theory.
In Kavanagh, supra, the court considered the question
and determined that while the facts-of that particular case did
not present enough causation evidence, the doctrine of avoidable
consequences could be applied in subsequent cases.
The theory
proposed based on the idea that the failure to fasten a seat
belt would come into play after the proximate cause of the
accident.
These decisions are essentially saying that the duty to
wear a seat belt should be imposed but its result should not
necessarily bar any recovery by an injured plaintiff who has
only contributed to his damage; not the cause of · the accident.
While the doctrine which comes closest to filling that gap is
18
mitigation of damages, the Texas courts will have to modify
or ignore its previous inapplicability to antecedent negligence.
What is needed is indeed a hybrid, but the history of
judicial decision in Texas is filled with examples where courts,
when necessary to do justice between the parties, have refused
to be bound by artificial and hackneyed distinctions.
"The
doctrine of stare decisis does not absolutely bind this court
to follow its prior decision."
Mitchell v. Mitchell, 157 Tex.
346, 303 S.W.2d 352 (1957).
Basically the Petitioner has presented the court with a
two-pronged problem.
Expansion of the definition of due care,
to · impose a duty to .fasten an available seat belt, necessarily
demands refined application of the existing mitigation of
damages principle.
While the court has been asked to move
forward and modify some fairly well-entrenched concepts, the
facts of this case reflect a growing problem that must soon be
resolved.
In the words of an eminent Texas jurist, " • • • The
common law is not a changeless code prescribing exact and
•
inflexible rules.
Its distinctive and most admired feature is
its capacity for growth and adaptation to new conditions."
Address by the late Chief Justice of the Texas Supreme Court,
John .E. Hickman, delivered in Dallas, Texas, 1956; reprinted in:
Thode, Stare Decisis--Another View, 26 TEX. B. J. 197 (1963).
The trial court may disregard any special issues finding
no support in the evidence.
TEX • .R. CIV. P. JOl.
However, if
there is any evidence to sustain the jury's findings, it is
error to disregard them and enter judgment notwithstanding the
I
19
verdict.
Hammett v. McIntire, 365 S.W.2d 844 (Tex. Civ. App.--
Houston 1962, writ ref'd n.r.e.).
Because the Respondent should be c harged with the duty to
wear her available seat belt, and becau r c there was sufficient
evidence to support submission of special issues 16, 17, 18 and
19
and the jury's conclusion that Respondent's ommission was
the proximate cause of 100% of her injury; it was reversible
error for the Court of Civil Appeals to affirm the trial court's
judgment for Respondent.
II.
THE COURT OF CIVIL APPEALS ERRED IN AFFIRMING THE TRIAL
COURT'S REFUSAL TO PERMIT PETITIONER TO CROSS-EXAMINE AT
TRIAL THE PHYSICIAN WHOSE DEPOSITION TESTIMONY WAS INTRODUCED BY RESPONDENT.
A.
Denial of the valuable right of cross-examination
constitutes reversible error.
Of fundamental importance in considering the Petitioner's
second point of error is the fact that the Respondent was, by
procedural gamesmanship, able to introduce the testimony of an
expert witness, thus establishing the damage element of her
prima facie case, without subjecting him to any cross-examination by the Petitioner.
So important is the right of cross-
examination that this court has held that its denial or undue
abridgement is reversible error.
Eastern Texas Ry. Co. v •
. Scurlock, 97 Tex. 305,78 S.W. 490 (1904).
See also:
TRIAL HANDBOOK FOR TEXAS LAWYERS, § 116, at 170 (1971).
JORDAN,
This
basic principle, hidden by unclear interpretation of the Texas
deposition rules and distorted by the rule against impeaching
one's own witness, stands as the overriding factor in this
case which compels reversal of the decisions below.
20
When the deposition testimony of Dr. Tes T. Fier was
introduced, the Petitioner sought t ,o impeach that testimony
by calling Dr. Fier, who was available in court, to the stand
(R. 8).
The information elicited by the Petitioner, and con-
tained in the bill of exceptions would have shown the jury
that the physician often testified favorably in personal injury actions for plaintiffs, and that at least half of his
patients were referred to him by plaintiffs' attorneys (R. 9-9a).
Since there was no other evidence relevant to the nature and
extent of Respondent's injuries, impeachment of Dr. Fier was a
crucial element of the Petitioner's defense.'
The propriety of the attempted impeachment is demonstrated
by Barrios v. Davis, 415 S.W.2d 714 (Tex. Civ. App.--Houston
[1st Dist.] 1967, no writ), which reasserts the long-standing
rule that it is not error to cross-examine a plaintiffs' doctor,
. . . with respect to the number of cases he had
testified in, the counties where such cases were
tried, the fees which he had charged, the amount
collected by him in cases refsrred to him by lawyers, and that he was well known as a doctor who
t es tified in court on behalf of injured people.
Barrios, at 716.
That decision was based on the general proposition that
a witness may be impeached for bias, interest or prejudice.
Wentworth v. Crawford, 11 Tex. 127 (1853).
The rule was first
applied by a Texas court to allow impeachment of plaintiffs'
doctors in Evansich v. G. C. & Santa Fe Ry. Co., 61 Tex. 24
(1884).
It is interesting to note that both Barrios, supra,
and Horton v. Houston & T. C. Ry. Co., 103 S.W. 467 (Tex. Civ.
21
App.--Galveston 1907, writ ref'd) were decisions recognizing
the propriety of such impeachment rendered by the same court
of civil appeals which denied impeachment in this case.
The
opinion of the court of civil appeals in the case at bar cites
no authority and offers no reasoning for its decision (R. 18).
Indeed the court appears to have been reluctant to follow what
it believed to be the law, and it seems to invite the action
of this court (R. 18).
Since the nature of the desired impeachment was proper,
consideration is now focused on the court's reasons for exclusion.
The trial judge sustained Respondent's objection to the
Petitioner's
attem~ted
impeachment on grounds that it violated
the rule against impeaching one's own witness.
The Court of
·Civil Appeals "summarily" affirmed that decision, implying
that the opportunity to cross-examine the witness was afforded
under the procedure for filing cross questions.
TEX. R. CIV. P.
192.
Rule 192 provides that when a, party receives notice that a
deposition will be taken by the opposite party, he may then
serve the deponent with cross-questions.
To equate the oppor-
tunity to file cross-questions with the right of cross-examination, is to reduce what Dean Wigmore has called, "the greatest
legal engine ever invented for the discovery of truth," 5
WIGMORE, EVIDENCE, § 1367, at 29 (3d ed. 1940), to a frail and
useless toy.
Two decisions, both by courts of civil appeals, have given
Rule 192 a narrow construction not warranted by the statutory
22
language .
In St. Louis & s. F. R. Co . v. Matlock, 141 S.W.
1067 (Tex. Civ. App.-- Dallas 1911, wr i t ref'd), the court held
that if a party failed to file cros s- interrogatories (now
cross-questions) any f uture questio n i ng of the deponent made
him . the questioner's witness.
Relying on Matlock, the court
in Linton v. Jones, 462 S.W.2d 636
(Tex. Civ. App.--Tyler 1971,
no writ), held that cross-interrogatories had to be filed
before issuance of the commission t9 take the deposition.
These decisions are hardly dispositive of the problem at
hand.
Not only are they the only case authority even remotely
relevant, but they also base their decision on Rule 192, which
states that cross-questions may be filed, without explaining
why they must be filed at the expense of forfeiting the right
to cross-examination.
Perhaps the most valuable characteristic of cross-examination is the jury's opportunity to observe the witness' demeanor
on the stand.
This is especially true when the witness' credi-
bility is being impeached for bias .or interest.
•
As explained
by REED, CONDUCT OF LAWSUITS, p. 326 (1912):
Except in indifferent matters never take your eye
from that of the witness. This is a channel of
communication from mind to mind, the loss of which
nothing can compensate.
'Truth, falsehood, hatred, anger, scorn, despair,
And all the passions -- all the soul is there'
Be not regardless, either, of the voice of the witness;
next to his eye, this is perhaps the best interpreter
of his mind. . . the mental reservation of the witness
is often manifested in the tone or accent, or emphasis
of the voice.
The need to have a live witness for cross-examination has
been recognized by noted trial attorneys.
EHRLICH, THE LOST
23
ART OF CROSS-EXAMINATION, at 91-96 (1970); APPLEMAN, CROSSEXAMINATION, a t 2 4 (1965).
Stevenson, in SUCCESSFUL CROSS-
EXAMINATION STRATEGY at 1304-1306 (1971), emphasizes that live
cross-examination is pa rticularly important wh e re the witness
is a medical expert.
Obviously the demeanor of the witness
cannot be observed by counselor jury when the witness is able
to first examine all of the questions, give them his leisurely
consideration, and then respond with an assisted answer.
Since
this crucial witness was available in court, there was no
reason to deny Petitioner the right to cross-examine him, thus
precluding the jury from observing his behavior.
Permission to cross-examine the physician could have been
based on at least two theories:
(1) that where the effect of
admitting a deposition as substantive evidence is to deny the
right to cross-examination the trial• judge abuses his discretion; or,
(2) that the witness, when called by the Petitioner,
was subject to impeachment because the rule against impeaching
one's own witness is no longer a
B.
~iable
rule of law.
Where the effect of admitting a deposition is to deny
th e right of cross- exami nation, such action constitutes an abuse of the trial judge's discretion.
It is largely because Texas is unique in allowing the
introduction of deposition testimony as substantive evidence,
where the deponent is available for "live" testimony, TEX. R.
CIV. P. 213, that this controversy developed.
In most juris-
dictions, the deposition of a party available in court is not
admissible as substantive evidence.
R. Keeton, Proprietorship
Over Deponents, 68 HARV. L. REV. 600, 610 (1955).
24
Had Texas followed the majority rule, Respondent would
have found it necessary, in order to support the damage
element of her burden of proof, to place the physician on the
stand.
This procedure would have then given Petitioner an
opportunity to cross-examine the witness, and avoid collision
with the rule against impeaching one's own witness.
While
', the fact that Texas follows a minority rule does not necessarily mean it is wrong, it does indicate that it should be given
close scrutiny when it produces inequitable results.
The practice of admitting a witness ' deposition as substantive evidence in spite of his presence at trial, had
uncertain, often confusing origins.
This court, in Boetge v.
Landa, ' 22 Tex. 105 (1858), and even in the Reconstruction
decision of Elliot v. Mitchell, 28 Tex. 105 (1866), held it
to be reversible error to allow the introduction of a deposition when the witness was available in court.
The court in
Randall v. Collins, 52 Tex. 435 (1880) determined that where
the deponent is available, there is a right to have him
•
placed on the stand.
Thereafter, this court in Schmick v. Noel, 64 Tex. 406
(1885), held that admission of the deposition of an available
witness, through an "irregularity," was not reversible error.
T,wo years later, however, ' the court returned to its earlier
position when they excluded the deposition of an available
witness in McClure v. Heirs of Sheek, 68 Tex. 426, 4 S.W. 552
(1887) •
In resolving the conflict between those cases, the Texas
25
Supreme Court affirmed the admission of a deposition where
the witness was present, Hittson v. State National Bank, 14
S.W. 780 (Tex. 1890).
When a witness is present in court, and at the same
time his deposition is on file, it must be left
largely to the discretion of the court whether he
shall testify orally or by deposition, or both ways.
Hittson at 782.
The Hittson case is significant not only because it recognizes the fact that the admission 9f a deposition is discretionary
with the trial judge, but within that discretion, it would allow
a witness to testify both by deposition and orally.
While
Hittson is authority for admitting the deposition of an available witness; neither it, nor any other Texas case has ruled
that admission of a deposition under such circumstances is
absolutely prohibited or absolutely required.
O'Connor v.
Andrews, 81 Tex. 28, 16 S.W. 628 (la9l); Holt v. Guerguin, 106
Tex. 185, 163 S.W. 10 (1914); Harrison v. Orr, 296 S.W. 781
(Tex. Comm'n App. 1927, jdgmt adopted) •
• • • use of the deposition because of the presence
and availability of the witness poses an issue which
is determined by the trial judge in the exercise of
his judicial discretion, reviewed only on a showing
of abuse.
2 McDONALD, TEXAS CIVIL PRACTICE IN
DISTRICT AND COUNTY COURTS, § 10.02.17, at 510 (1970
rev. ) •
Historically, depositions were intended to obtain evidence
for use at trial, and only in the last few decades have they
been employed for the additional purpose of pretrial discovery.
Franki, Discovery, 13 TEX. B.J. 447 (1950).
See Also:
Thode,
Some Reflections on the 1957 Amendments to the Texas Rules of
Civil Procedure Pertaining to Witnesses at Trial, Depositions,
and Discovery, 37 TEX. L. REV.
(1958).
While these liberal
26
deposition rules may save time and expense, and often make
evidence available that might otherwise be inaccessible, their
convenience and utility should not be allowed to deprive a
party of his right to cross-examination.
When the effect of a
deposition's admission is to deny that right, then it should
be recognized as an abuse of the
tria~
judge's discretion and
reversible error.
Difficulty has arisen, however, in that the "discretion"
concept for admission of depositions, ' while sound in reason
and previous Texas Supreme Court decisions, has been clouded
by the concurrence of two events:
(1) the unique problem
situation that arises when the deposition rules collide with
the rule against impeaching one's own witness; and,
(2)
rendition of a maze of confusing interpretations by lower
courts.
Chronologically, the first case to consider the problem
made the most substantial contribution to the existing confusion.
In Cook v. Denike, 216 S.W. 437 (Tex. Civ. App.--San
Antonio 1919, writ dism'd), the plaintiff introduced deposition testimony of an available physician for the purpose of
proving the necessary element of mental incapacity in a will
contest.
On appeal, it was argued that admission of the depo-
sition denied the right to cross-examine the witness.
Since
the plaintiffs had taken the deposition, but it was used by
the defenda nts, and the opinion hints at various other machinations and maneuvers by the parties, it may be reasonably
inferred that in affirming the judgment the court was more
27
concerned in. doinS justice between the particular parties involved than in enunciatins an inflexible rule of law.
The decision. did correctly state the discretion rule,
citing Schmick, O'Conner, and Holt as authority; but on motion
for rehearing, the court rationalized the denial of crossexamination on grounds that the deposition testimony could not
be "blended" with live testimony.
Therefo~e,
the court expound-
ed, any attempt to call the available deponent for impeachment
would have been in violation of the rule against impeaching
one's own' witness.
To that extent, the Cook decision distorts Schmick,
O'Conner, and Holt because those cases are not authority for
denial of the right of cross-examination.
The conclusion of
the Cook case that a deponent undergoes a curious transformation; becoming a second person when" he takes the stand, is
wholly beyond the bounds of reason.
Another reason Cook denied the appellant's contention
that he had been denied the right of cross-examination was
•
because he h'a d cited no authority for that proposition. It
is interesting that in its opinion denying that . valuable right,
the Cook court also neglected to cite any authority for its
conclusion.
An interesting paradox is presented by Bernard's, Inc . v.
Austin, 300 S.W. 256 (Tex. Civ. App.--Dallas 1927, ' writ ref'd).
There, it was error for the plaintiff, who had introduced
deposition testimony to impeach the deponent even thouSh he
had subsequently been called by the defendant.
The rationale
28
was that the deponent remained the witness of the party who
introduced his deposition into evidence.
Apparently, if that
court had ruled in the case at bar, the physician would still
have been Respondent's witness though Petitioner subsequently
called him to the stand.
In Fenner v. American Surety Co. of New York, 156 S.W.2d
· 279 (Tex. Civ. App.--Waco 1941, writ ref'd w.o.m.), the court
determined that a deponent, whose deposition testimony had been
introduced by one party, became the witness of the other party
only to the extent of the "new matter" elicited.
The Petition-
er in this case attempted to impeach the Respondent's physician
only about matters already covered in the deposition.
Unlike
Fenner, where the new matter consisted of information affirmatively supporting the defense, Petitioner's attempted cross-
•
examination was for the purpose of impeachment.
The decision in Parr v. Parr, 207 S.W.2d 187 (Tex. Civ.
App.--Amarillo 1947, writ ref'd n.r.e.), was that a party
vouches for the testimony in a d~posltion which he introduces
and the deponent is his witness to that extent.
Since
Respondent would be said to have vouched for his physician's
deposition, it would be patently unfair to force the Petitioner,
by imposing the rule against impeaching one's own witness, to
vouch for that same testimony.
Industrial Fabricating Co. v. Christopher, 220 S . W.2d 201
(Tex. Civ. App . -"':Galveston 1949, writ ref'd·n.r·.e.) , i s the
progeny of Cook.
That case was a personal injury action in
which the critical element of the defense was that the negligent
29
driver , of a company-owned veh i cle was acting outside the scope
of his employment.
To counter the defense, the appellee had
int r oduced a deposition in which the driver's mother indicated
that the appellee had told her that he had instructed her son
to make the trip.
Although the appellant had filed cross-
interrogatories showing contrary testimony, he attempted to
cross-examine the available deponent in court-.
The court held
that denial of this cross-examination was not error.
The only authority cited by the court in Christopher is
Cook v . Denike, supra .
Compounding error, the Christopher
decision quoted the language about not "blending" oral and
d eposi tion - testimony.
As consider,e d earlier, there is absolute-
ly no author i ty for that conclusion.
In addition, the
Christopher ,case stated that "full provision is made within the
•
system for preserving the right of cross-examination by cross
interrogatories."
Aside from reference to TEX. R. CIV. P. 186-215, the
court offered no authority or reasoning for that statement.
There is nothing in these rules, however, which specifically
states or indirectly implies that cross-interrogatories were
intended to be a party's only chance for cross-examination.
Finally, the Christopher court attempts to distinguish
Bernard's, Inc. v. Austin, supra, concluding that there was no
, language in that case which refutes the rule against impeaching one's own witness .
That fact notwithstanding, the court
.
'
ignored the factual situation, for the effect of Bernard was
to allow the defendant to call the plaintiff's deponent for
30
live testimony without being subjected to the rule against
impeaching one's own witness.
In Clary v. Morgan Motor Co., 246 S.W.2d 936 (Tex. Civ.
App.--Fort Worth · 1952, no writ), the plaintiff sued for the
loss of a truck which was destroyed by fire while on the
defendant's premises.
At trial, the plaintiff introduced the
deposition testimony of the defendant's employee, who said
that he had not been negligent.
Then, to contradict the
testimony of the defendant's employee, plaintiff introduced a
deposition by a newspaperman
who said that the employee had
admitted his negligence to him.
The defendant then called his
employee to the stand and examined him.
When the plaintiff
subsequently tried to cross-examine him, the defendant objected
on grounds that the plaintiff was trying to impeach his own
witness.
While affirming that objection, the court actually held
. that in spite of the defendant's calling the witness in person,
he remained under the proprietorship of the plaintiff.
In the
•
case at bar, the deponent Dr. Fier, should have remained under
the proprietorship of the Respondent.
Another decision citing the "blending" language of Cook
and Christopher was Forbes v. Hejkal, 271 S.W.2d 435 (Tex. Civ.
App.--Dallas 1954, writ dism'd), which held that a deponent
could be called to identify a prior inconsistent statement.
The court seemed to be trying to limit 'the effect of those two
decisions by carving out an exception for prior inconsistent
statements.
The mere repetition of the "blending"
does not make it correct.
language
31
The conflict in these decisions, as noted in 1 McCORMICK
& RAY, TEXAS LAW OF EVIDENCE, § 637, at 483, note 75 (2d ed.
1956), indicates a need for clarification by the Supreme Court.
In particular, the erroneous decisions in Cook and Christopher
should be exposed for the grave injustice they would perpetuate.
The correct rule would leave the admissibility of depositions
when deponents are available in court to the discretion of the
trial judge.
Correct application of that rule would show that
when the effect of admitting a deposition is to preclude the
right of cross-examination, the trial judge has abused that
discretion.
C.
Ri i d a lication
own w~tness would
one's
As the cornmon law legal system departed from the old
methods of trial by compurgation and.inquisition, new rules
developed as over-reactions to the fears expressed by those who
opposed the "radical" change to what is now the adversary systern.
One of those antiquated relics which has continually
•
plagued the courts and hampered the search for truth, {s the
rule against impeaching one's own witness.
Traditionally
applied to criminal cases, the rule was first reported in a
civil case in Adams v . Arnold, 12 Mod. 375,90Eng. Rep. 1064 (1700),
when Holt, C.J., "would not suffer the plaintiff to discredit
·a witness of his own calling, he having testified against him."
Ladd, Impeachment of One's Own Witness--New Developments, 4 U.
CHI. L. REV. 69,
(1936).
Today the rule's application in both
.criminal and civil cases has been liberalized and, in many
instances, abolished.
CALIF. EVIDENCE CODE, S 785, ILL. REV.
32
STATS. 1967, c.llO, S 60; KANSAS CODE OF CIVIL PROCEDURE,
§
60-420; MASS. LAWS ANNOT. 1959, c . 233, S 23; NEW JERSEY
EVIDENCE RULE 20; N.M. STATS. ANNOT. 1953, 20- 2-4, 642;
N.Y. CPLR S 4514
(McKINNEY 1963); 12 VT. STATS. ANNOT. 1959
55 1641(a), 1642.
The rule has been widely criticized by jurists, commentators, and legislators.
3A WIGMORE, EVIDENCE,
McCORMICK, EVIDENCE, S 38 (2d ed. 1972)/
§
897 (Chadbourn rev. 1970) .
A complete
rejection of the rule is found in United States v. Freeman,
.302 F.2d 344 (2d Cir. 1962), and the proposed federal rules
echo that opinion, abandoning its application in all instances .
Proposed Rules of .Evidence for the U.S. District Courts and
Magistrates (1971), Rule 607.
Wigmore lists and refutes the three reasons traditionally
•
as justifications for the rule's existence.
First, there is
the "primitive notion" that a party is "morally bound" by his
witness, but this idea "no longer finds defenders."
EVIDENCE,
§
897, at 661 (ChadbouLn rev. 1970).
was .said to vouch for his witness' credibili~y.
3A WIGMORE,
Second, a party
This "last
remnant " of the "primitive notion rests upon no reason whatever,
but upon mere tradition", and "irrationally forbids any attempt
to question the utterance of one's own witness."
The impracti-
cality of that rationale is apparent when it is recognized that
one cannot always choose who he must call as a witness.
WIGMORE, S 898, at 661.
Third, it was thought that the power
to impeach was the power to coerce testimony by threats to
blacken the witness' character. - "This is not a high-minded nor
33
a practical attitude for a tribunal seeking the truth."
WIGMORE, S 899, at 663.
It is generally conceded that the rule
against impeaching one's own witness particularly has no justification when, as in the case at bar, the impeachment is for
bias or interest.
3A WIGMORE, EVIDENCE, S 901, at 667 (Chad-
bourn rev. 1970); Ladd, Impeachment of One'.s Own Witness-New Developments, 4 U. CHI. L. REV. 69, 83 (1936).
Although Texas has not abolished the rule by statute, it
has significantly reduced its ambit from the absolute position
originally announced in Paxton v. Boyce, 1 Tex. 317 (1841).
"There is no good · reason for preserving the general rule and
it is pleasing to note that Texas has greatly restricted its
application."
1 McCORMICK & RAY, TEXAS LAW OF EVIDENCE, S 632,
at 480 (2d ed. 1956).
•
This court made a significant limitation on the rule in
Morgan v. Stringer, 120 Tex. 220, 36 S.W.2d 468 (1936), when
it held that a party may impeach his own witness if the testimony constitutes injurious surprise.
Impeachment of one's own
witness is also sanctioned when the opposite party elicits new
matter on cross-examination.
American General Insurance Co. v.
Jones, 152 Tex. 99, 255 S.W.2d 502 (1953).
The opinions justify the conclusion that Texas will not
rigidly enforce this widely disliked rule.
Certainly the case
at bar vividly illustrates the inequity that can result from
· its strict application.
The dubious conception that a deponent becomes a second
person when called to the stand by the opposite party, was the
34
only reason for prohi b iting the Petitioner from impeaching
Dr. Fier.
As has already been shown, this rationale is
endorsed by only a minority of Texas opinions.
The original
decision, Cook v. Denike, supra, was not, based upon authority
or reasoning.
Industrial Fabricating Co. v. Christopher, supra,
merely echoed the same erroneous language.
This ,rationale was not followed in Hord v. Gulf, C. & S. F.
Ry. Co., 76 S.W. 227 (Tex. Civ. App,--Fort Worthl903, no writ).
There plaintiff introduced a deposition of a witness to an
accident in which her husband was killed.
Defendant ultimately
called the witness in person and she contradicted her deposition.
Plaintiff was not permitted to call the notary public
who took the deposition because the deponent remained her
witness.
Thus, by enforcing the-ban on impeachment of one's
witness, the court in effect held that defendant's calling the
witness to impeach her deposition did not terminate plaintiff's
proprietorship.
In spite of the witness' live testimony for
defendant, she did not become his witness .
•
This court should hold that the Petitioner did not make
Dr. Fier his witness when he attempted to impeach the physician's
deposition testimony.
Professor Robert Keeton explains this
position.
These situations should not be treated as if two
separate witness e s were involved. The rule against
impeachment is based on an idea that the party has
made the witness his own. Though there are two
depositions, or a deposition and 'live' testimony,
there is only one witness. R. Keeton, Proprietorship over Deponents, 68 HARV. L. REV. 600, 614 (1955).
The rule against impeaching one's own witness is almost
35
universally deplored and has often been abolished.
Its con-
tinued application in Texas is justified only because of this
court's willingness to create exceptions that circumvent its
'many inequities.
Although this court would be warranted in
following those jurisdictions which have refuted the rule's
validity,
it should at least create an exception that would
preclude the rule's application in cases where the examination
of an available deponent is a litigant's only opportunity for
impeachment.
Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
prays that the writ of error be granted and that, upon hearing
herein, the judgments below be
rever~ed
and rendered for the
Petitioner, and in the alternative, that the judgments below
be reversed anq remanded for proceedings consistent with the
decision of this court.
R~spectfully submitted,
A· -
V
e
--~'.2?2VZ~
Grover Hartt, III
mes Max Mou
36
CERTIFICATE OF SERVICE
We certify that this brief was written in compliance with
the rules of the State Bar of Texas Moot Court Competition and
copies of same have been timely forwarded to opposing counsel •
•
.,. 'IS
....::tL... J«• en
Grover Hartt, III
· ALi ·CARS - ALL SPEED LIMITS
FREQUElICY DISTRIBUTION OF PHYSICAL IIlJURYEXTENT VS RESTRAINT USE FOR ALL FRONT SEATS
PHYSICAL INJURY EXTENT
RESTRAINT USAGE
NONE
(0)
COMPLAINT (C) NOTICEABLE (B)
RESTRAINTS NOT AVAILABLE
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SUBTOTAL - NO RESTRAINTS USED
. 1853
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,,
SUBTOTAL - SOME RESTRAINT USED
1)19
412
1731
6
186
29
215
0
44
· 1781
5
220
TOTAL - ALL OCCUPANTS
6851
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. SEVERE (A)
. KILLED (K)
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UP BELT ONLY AVAILABLE, USED
SHOULDER & LAP BELTS AVAIL, LAP ONLY USED
SUBTOTAL - LAP BELT ONLY USED
SHOULDER & LAP BELTS AVAIL, SHOULDER ONLY
USED
mOULDER & LAP BELTS AVAIL, BOTH USED
SUBTOTAL - SOME RESTRAINT USED
TOTAL - ,ALL OCCUPANTS
BONE
(0)
PHYSICAL INJURY EXTENT
COMPLAINT (C) NOTICEABLE (B)
SEVERE (A)
KILI..ED (K)
10.)
11.9
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38
APPENDIX B
In the following cases the Courts of Civil Appeals have
held that the admission of a deposition as substantive evidence
when the deponent was available in court was within the trial
court's discretion.
First Supreme JUdicial District
Houston & Texas Central Central Railroad Co.
256 Tex. C~v. App . --Galveston 189 , no wr~t
Judgment for
the plaintiff for personal injuries was reversed and remanded.
The trial court had sustained plaintiff's objections to the
admission of depositions of witnesses who were present in
court. This action was reversible error.
IV¥ v . Ivy, 112 S.W. 110 (Tex. civ. App.--Galveston 1908, no
The trial court granted judgment for plaintiffs on their
claims to lands allegedly inherited from their mother. Exclusion of defendant's deposition because of his presence in court
was error. Reversed and remanded.
wr~t).
Russ Mitchell, Inc. v. Houston Pi e Line Co., 219 S.W.2d 109
Tex. C~v. App.--Galveston 1949, wr~t ref d n.r.e.). Plaintiff
sued for breach of contract respecting laying and salvaging of
pipe. Judgment for the plaintiff was affirmed. There was no
error in allowing the reading of the depositions of two witnesses who were present in court. Defendant was not prejudiced
•
by such procedure.
Second Supreme Judicial District
10 erst Insurance Association v. Pillow, 268 S.W.2d
716 Tex. C~v. App.--Fort Worth 1954, wr~t ref d n.r.e.).
Plaintiff received judgment for total and permanent disabilities. On appeal, defendant contended that it was improper for
plaintiff to admit his own deposition which had been taken by
defendant. The court found no error and affirmed.
Third Supreme Judicial District
Dillingham v. Hodges, 26 S.W. 86 (Tex. Civ. App.--Austin 1894,
no writ). Appellee was given judgment against the railroad's
receiver for damages she incurred from travelling in an unheated car. Although the court's reasoning is not clear, it
found nothing improper in the admission of appellee's own
deposition and affirmed.
Couturie v. Roensch, 134 S.W. 413 (Tex. Civ. App.--Austin 1911,
writ dism'd). Appellant had sued to recover principal of note
due his assignor in bankruptcy for goods sold. The overruling
of his objections to admission of appellee's ex parte decision
was urged as error since he was present in court. The court
held that the trial court was within its discretion and affirmed.