National Carriers, Inc. and Charles R. Dodson v. John T. Ray--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-01-00413-CV
NATIONAL CARRIERS, INC.

and Charles R. Dobson,

Appellants
v.
John T. RAY,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 99-CI-10446
Honorable Fred Shannon, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: April 30, 2003

AFFIRMED

This appeal arises from a personal injury case. Appellee John T. Ray claims to have been injured when he was run over by a truck driven by Appellant Charles R. Dobson who was acting in his capacity as an employee for Appellant National Carriers, Inc. Ray brought suit against both Dobson and National Carriers. Following trial, a jury assessed 65% negligence against National Carriers and Dobson and 35% negligence against Ray. National Carriers and Dobson now appeal to this court, citing eight issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the judgment in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In their first two issues, National Carriers and Dobson contend the evidence presented at trial is both legally and factually insufficient to support the jury's verdict that Dobson proximately caused Ray's injuries. See Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

At trial, in addition to his own testimony, Ray presented the testimony of eyewitness Lawrence Tatum, EMS paramedic Fred Johnson, and accident reconstruction engineer A.O. Pipkin, Jr., as well as the deposition testimony of police officer Daniel Justin Anders. The appellants also introduced into evidence a police report which described the incident as being caused by appellants' truck driving over Ray. Although National Carriers argued that Dobson could not have run over Ray's legs because (1) Ray was lying in the grassy area off the roadway at all times relevant to this incident and (2) Tatum never saw the truck's taillights go over the curb into the grass, it was dependant upon the jury, as the trier of fact, to determine the correct weight to be given the witnesses' testimony. As such, the testimony set forth by Ray is legally and factually sufficient to support the jury's verdict, and we overrule National Carriers' first two issues on appeal.

2. In their third issue, National Carriers and Dobson allege the trial court erred in admitting the testimony of Ray's expert, A.O. Pipkin, Jr. The admissibility of expert testimony is reviewed under an abuse of discretion standard and governed by the Texas Rules of Evidence. See Tex. R. Evid. 702; E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Gammill v. Jack Williams Chevorlet, Inc., 972 S.W.2d 713, 720 (Tex. 1998).

Ray's expert, Pipkin, testified as a certified traffic accident reconstruction engineer. Pipkin testified as to the operation of a truck and trailer such as the one involved in the incident. He also testified as to the probable sequence of events surrounding the accident and the cause of Ray's injuries. In testifying, Pipkin utilized his training, knowledge and experience, as well as observations gathered from examining police photographs and reports. The testimony was sufficiently tied to the facts of the case in such a way as to assist the jury in deciding a fact issue, making it relevant. See Gammill, 972 S.W.2d at 720. The evidence was also sufficient to show that what Pipkin believes could have happened actually did happen, and was therefore reliable. Id. at 728. Thus, the trial court did not abuse its discretion by admitting Pipkin's testimony. We overrule National Carriers' third issue.

3. In their fourth and fifth issues, National Carriers and Dobson contend the trial court erred in allowing Pipkin to testify beyond the scope of his expert report and designation. Specifically, the appellants complain the trial court erred in three respects. First, the court allowed Pipkin to attest to Dobson's negligence in failing to walk around his truck before parking, an allegation he did not discuss in his report and which the appellants complain is contradictory to Pipkin's earlier statements. Second, the court let Pipkin testify as to the standard of care expected from a commercial truck driver, concluding that Dobson had violated that standard of care. Finally, National Carriers and Dobson contend the trial court erred in allowing Pipkin to reference undisclosed guidelines to relay the proper standard of care. The appellants argue that, upon their counsel's motion, the trial court should have granted a mistrial based on unfair surprise.

We review a trial court's decision on the admission of evidence under an abuse of discretion standard. Tex. Dept. of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). If we find any basis for the trial court's evidentiary ruling, we will uphold that ruling. Owens Corning Fiberglas v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In order to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion, state the specific grounds and obtain a ruling. Tex. R. App. P. 52(a). To preserve error after inadmissible evidence is allowed before the jury, a party must sequentially pursue an adverse ruling from the trial court by: (1) objecting to the complained-of evidence, (2) moving the court strike the evidence from the record, (3) requesting the court to instruct the jury to disregard the evidence, and (4) moving for a mistrial. One Call Systems, Inc. v. Houston Lighting and Power, 936 S.W.2d 673, 677 (Tex. App.--Houston [14th Dist.] 1996, writ denied). Absent an adverse ruling from the trial court, nothing is preserved for appellate review. Id.; Tex. R. App. P. 52(a).

The trial court did not abuse its discretion in allowing Pipkin to answer questions regarding a set standard of care for commercial truck drivers. Appellants objected when Ray's counsel referred, during his direct examination of Pipkin, to the commercial driver's handbook. The trial court sustained the objections, and later testimony did not directly refer to any specific guideline or standard. Appellants, then, did not receive an adverse ruling regarding the admission of the complained-of testimony, failing to preserve error on this point. Id. Additionally, appellants failed to object to Pipkin's testimony regarding whether a driver should walk around the truck before backing up until several questions after the jury had heard it. They then failed to follow the standard iterated in One Call Systems, thereby waiving any issue on appeal as to this subject matter. 936 S.W.2d at 677.

Furthermore, looking at the record in its entirety, even if the trial court did abuse its discretion in allowing Pipkin to testify as to matters not specifically iterated in his expert report, including the standard of care for commercial truck drivers, appellants failed to demonstrate the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). We overrule appellants' fourth and fifth issues.

4. National Carriers and Dobson, in their sixth issue, argue the trial court erred in allowing Pipkin to display and refer to unauthenticated photographs. When counsel for the appellants objected, the trial court gave an instruction to the jury that the photographs were to be used for demonstrative purposes only.

The admission or exclusion of evidence is a matter within the sound discretion of the trial court. City of Brownsville, 897 S.W.2d at 753. For the admission or exclusion of evidence to constitute reversible error, the complaining party must show that the error probably caused the rendition of an improper judgment or probably prevented the complaining party from properly presenting the case to the reviewing court. Tex. R. App. P. 44.1(a). Reviewing the record, even if the trial court erred in allowing Pipkin to refer to the unauthenticated photographs, the appellants have failed to demonstrate this error caused the rendition of an improper judgment. Accordingly, we overrule their sixth issue.

5. Appellants' seventh issue asserts the trial court erred in denying their motion for mistrial when Ray's expert mentioned insurance in the presence of the jury. National Carriers and Dobson argue that Pipkin "gratuitously injected insurance into the case." The expert testimony to which National Carriers objected is as follows:

Question: What trucking company do you work for and advise for?

Answer: Allied Van Lines, Stevens Frozen Food Express. I do a lot of work for a company in Schertz, a lot of trucks great west. . .

(At the bench on record)

Mr. Stephenson (Attorney for National Carriers): I move for a mistrial. I mean, you know, he's now injected into this case a trucking company, is insured. . .

At no time during his testimony did Pipkin refer, either expressly or impliedly, to insurance coverage. More specifically, Pipkin did not refer to whether National Carriers was insured or any way in which insurance may have affected the appellant. Accordingly, we overrule National Carriers' seventh issue.

6. In their eighth and final issue, National Carriers and Dobson argue that the cumulative effect of the trial court's alleged errors supports a finding of reversible error. Multiple errors, even if considered harmless if taken separately, may result in a reversal and remand for a new trial if the cumulative effect of such errors is harmful. Tex. R. App. P. 44.1(a)(1), (2); Jones v. Lurie, 32 S.W.3d 737, 745 (Tex. App.--Houston [14th Dist.] 2000, no pet.). Additionally, before a complaint of cumulative error can be sustained, the record must show that but for the alleged errors, the jury would have rendered a verdict favorable to the appellant. See Tex. R. App. P. 81(b)(1); Pitman v. Lightfoot, 937 S.W.2d 496, 537 (Tex. App.--San Antonio 1996, writ denied). Because we found no error in appellants' previous issues, we overrule their final issue and affirm the judgment of the trial court.

Paul W. Green, Justice