Shirley Abbott McRae v. Roderick Neal Echols--Appeal from 87th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-98-311-CV

SHIRLEY ABBOTT McRAE,

Appellant

v.

RODERICK NEAL ECHOLS,

Appellee

From the 87th District Court

Limestone County, Texas

Trial Court # 24,665-B

O P I N I O N

This is an appeal from a judgment rendered against Shirley McRae for damages sustained by Roderick Echols in an automobile-forklift collision. McRae asserts in three issues that: (1) the court erred in admitting a peace officer s accident report as an Official Document ; (2) the evidence does not support the jury s failure to find that Echols negligence was a proximate cause of the accident; and 3) the jury was selected in violation of Rule of Civil Procedure 232. We will affirm the judgment.

FACTS

On March 14, 1996, Echols, in the course of his employment, drove a forklift approximately one block southbound on Highway 39 in Limestone County. McRae was traveling the same direction on Highway 39 and, while Echols was turning left, attempted to pass him. They collided predominantly on the shoulder of the northbound lane. Echols sued McRae for injuries he sustained. Evidence at trial revealed that Echols did not signal that he was turning left, did not display warnings that the forklift is a slow-moving vehicle, and did not have working brake lights on the forklift. Evidence also showed that McRae received a citation for failing to pass safely. At the conclusion of trial, the jury found McRae s negligence to be the proximate cause of the occurrence, and failed to find that Echols negligence, if any, was the proximate cause. The jury further found Echols damages to be $39,800. Judgment was entered for this amount, plus interest. From this judgment, McRae appeals.

THE VENIRE

McRae s third issue attacks the court s failure to properly empanel the jury under the Rules of Civil Procedure. See Tex. R. Civ. P. 224, 231-32. Rule 224, regarding the preparation of a jury list, states that the clerk shall draw from the box, in the presence of the court, the names of twenty-four jurors . . . . Id. 224. Rule 231 provides:

If the challenges [for cause] reduce the number of jurors to less than twenty-four, if in the district court, or to less than twelve, if in the county court, the court shall order other jurors to be drawn from the wheel or from the central jury panel or summoned, as the practice may be in the particular county, and their names written upon the list instead of those set aside for cause. Such jurors so summoned may likewise be challenged for cause.

Id. 231. Rule 232 states:

If there remain on such lists not subject to challenge for cause, twenty-four names, if in the district court, or twelve names, if in the county court, the parties shall proceed to make their peremptory challenges. A peremptory challenge is made to a juror without assigning any reason therefor.

Id. 232. Although not specifically stated in the record, it is apparent that voir dire began with only twenty-three jurors and that McRae alerted the court to this deficiency at the beginning of voir dire. The court invited McRae to make her objection to the panel after Echols had completed his voir dire examination and before McRae began hers. She lodged an objection to proceeding with voir dire in violation of Rules 231 and 232 and asked the court to declare a mistrial. That objection was overruled. Because the rules contemplate a panel of at least twenty-four jurors in a district court when the time comes to exercise peremptory challenges, the court erred in not summoning at least one other juror. //

McRae asserts that a violation of these rules mandates automatic reversal. We disagree. // Rule of Appellate Procedure 44.1 states that [n]o judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. Tex. R. App. P. 44.1(a).

At the conclusion of voir dire, no challenges for cause were made. Each party was given six peremptory strikes. It is unclear from the record whether the parties each used a peremptory strike on the same juror, or if one party chose not to use all six strikes. Regardless, after the strikes were exercised, the court empaneled a twelve-member jury, to which McRae lodged no objection. Nothing in the record thereafter leads us to conclude that the error in not summoning an additional juror caused rendition of an improper judgment or prevented McRae from properly presenting her case on appeal. Id. Issue three is overruled.

ACCIDENT REPORT

McRae s first issue asserts that the court erred in admitting a certified copy of an accident report prepared by a peace officer shortly after the accident occurred. DPS Officer Thomas Peoples was not called to testify at trial. Rather, his written report was offered into evidence as an official record without a supporting witness. McRae objected that the report was hearsay and contained expert opinions not properly predicated. //

Accident reports are admissible under Rule 803(8) as exceptions to the hearsay rule. Tex. R. Evid. 803(8); Sciarrilla v. Osborne, 946 S.W.2d 919, 923-24 (Tex. App. Beaumont 1997, pet. denied); Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176, 181 (Tex. App. Amarillo 1992, writ denied) (citing Clement v. Texas Dept. of Public Safety, 726 S.W.2d 579, 581 (Tex. App. Fort Worth 1986, no writ); Porter v. Texas Dept. of Public Safety, 712 S.W.2d 263, 265 (Tex. App. San Antonio 1986, no writ)). Rule 803(8) provides for the admissibility of records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:

(A) the activities of the office or agency;

(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or

(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;

unless the sources of information or other circumstances indicate lack of trustworthiness.

Tex. R. Evid. 803(8). There is no evidence to show a lack of trustworthiness. Thus, the court did not err in admitting the report on this basis. However, having determined the accident report is admissible as an exception to the hearsay rule, we still must determine if the accident report contained expert opinions which should have been excluded.

The report contains a section, INVESTIGATOR S NARRATIVE OPINION OF WHAT HAPPENED, in which Peoples wrote:

Unit # 1 and Unit # 2 were traveling south on FR 39. Unit # 1 [proceeded] to turn left into a private drive as Unit # 2 struck Unit # 1 causing the above mentioned damage. Unit # 2 also struck a guard rail.

The report further contains a section entitled FACTORS AND CONDITIONS LISTED ARE THE INVESTIGATOR S OPINION. Peoples chose item 26, FAILED TO PASS TO LEFT SAFELY as a Unit # 2" factor contributing to the accident. The report also has a hand-drawn sketch showing how the collision occurred. Thus, the report does contain the officer s opinions regarding causation.

Rule 803(8) is substantively identical to Federal Rule 803(8). Compare Tex. R. Evid. 803(8) with Fed. R. Evid. 803(8). The United States Supreme Court in Beech Aircraft Corp. v. Rainey, considered whether the term factual findings in Federal Rule 803(8) encompasses opinions or conclusions. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162, 109 S. Ct. 439, 446, 102 L. Ed. 2d 445 (1988). The Court interpreted the Rule broadly, noting that it does not state that factual findings are admissible, but rather that reports . . . setting forth . . . factual findings are admissible. Id. at 165, 109 S. Ct. at 447. The Court went on to hold that portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule s trustworthiness requirement, it should be admissible along with other portions of the report. Id. at 170, 109 S. Ct. at 450. //

We see no reason to distinguish our Rule 803(8) from Federal Rule 803(8). The officer s conclusions and opinions stated within the report are based on his factual investigation of the accident. As stated earlier, no challenge was made to the trustworthiness of the report. Thus, issue one is overruled.

SUFFICIENCY POINTS

McRae s second issue challenges the legal and factual sufficiency of the jury s failure to find that Echols was negligent. She asserts that Echols admissions that:

a. the forklift was an unsafe vehicle;

b. there were no tail lights on the forklift;

c. there were no brake lights on the forklift;

d. there were no turn signals on the forklift;

e. he was instructed not to give a hand signal while using the forklift;

f. there were no warning signs on the forklift; and

g. there were no escort vehicles accompanying the forklift

establish his negligence as a matter of law. Alternatively, she asserts that the failure to find negligence was contrary to the great weight and preponderance of the evidence. The jury was asked and responded:

Did the negligence, if any, of the persons named below proximately cause the occurrence in question:

Answer Yes or No for each of the following:

A. Shirley McRae Yes

B. Roderick Echols No

The jury's negative answer represents a refusal to find from a preponderance of the evidence that Echols negligence proximately caused the accident. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). The broad-form submission makes it impossible for a reviewing court to ascertain whether the jury felt that Echols was not negligent or that his negligence was not a proximate cause of the accident. See Dealers Elec. Supply v. Pierce, 824 S.W.2d 294, 294-95 (Tex. App. Waco 1992, writ denied).

Assuming that Echols was negligent as a matter of law, the jury's negative answer could have been based on its conclusion that his negligence was not a proximate cause of the collision. Id. The question of causation is one for the trier of fact when general experience and common sense enables a layman to determine the causal relationship between events and conditions. Id. (citing Travenol Labs., Inc. v. Bandy Labs., Inc., 608 S.W.2d 308, 312 (Tex. Civ. App. Waco 1980, writ ref'd n.r.e.)). Thus, the question of causation was for the jury. See id. Issue two is overruled.

Having overruled all issues presented, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

(Justice Gray dissenting)

Affirmed

Opinion delivered and filed January 12, 2000

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