# Gonzalez v. Layton

> Court of Appeals of Texas · May 31, 1968 · 429 S.W.2d 215

URL: https://www.frixlaw.com/law-library/cases/9776460

## Case

- **Full name:** Mrs. Beatrice GONZALEZ Et Vir, Et Al., Appellants, v. James E. LAYTON, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** May 31, 1968
- **Citations:** 429 S.W.2d 215; 1968 Tex. App. LEXIS 2143
- **Precedential status:** Published
- **Opinion:** Concurrence by Green
- **Judges:** Nye, Green, Sharpe
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776460

## Opinion text

GREEN, Chief Justice
(concurring).
I am in agreement with Justice Nye’s disposition of appellants’ 1st and 2nd points of error and adopt that portion of the opinion.
I concur in his ruling that the exclusion from evidence of the testimony of the witness Malinowski that shortly after the accident, defendant Layton in a conversation with the witness at the latter’s home stated with reference to the accident: “I guess it was my fault” was not reversible error. However, since this was a remark made by the defendant himself, in connection with a factual statement about the collision which the trial court did not exclude, it is my opinion that the trial court actually was in error in refusing to admit it.
*220 In Isaacs v. Plains Transport Company, 367 S.W.2d 152 , our State Supreme Court, in a per curiam opinion, held as follows:
“We also hold that testimony of the plaintiffs that the driver of the truck stated that he was at fault and that if he had been three feet further back he could have missed the plaintiffs’ automobile was not admissible. These statements of the driver were pure conclusions and opinions, were not offered for impeachment, and were not admissible against the employer even though made immediately after the collision. Gulf C. & S. F. Ry. Co. v. Montgomery, 85 Tex. 64 , 19 S.W. 1015 ; Red Arrow Freight Lines, Inc. v. Gravis, Tex.Civ.App., 84 S.W.2d 540 , no writ history.” (Emphasis added.)
In Gulf, C. & S. F. Ry. Co. v. Montgomery, supra, one of the cases cited in the above quotation, the holding on this point was that “The declaration of the witness Hamilton, made immediately after the accident, was that of a mere bystander expressing an opinion, and was not admissible as a part of the res gestae. It was properly excluded.”
The court in Red Arrow, the other authority cited Isaacs, supra, in holding inadmissible the statement of the driver of appellants’ truck to the effect that the accident was his fault, said (84 S.W.2d p. 543) :
“Shares was not the owner of the Red Arrow truck; he was only employed by appellant to drive the truck, and would not have implied authority to confess liability. This statement seems to be so disconnected with the accident as not to become a part of the res gestae. However, if it be regarded as a part of the res gestae, it was not a statement of any fact, it was at most a conclusion and was concerning a mixed question of law and fact, and was the ultimate issue to be decided by the jury. It invaded their province. Such a statement made by an agent, who had no apparent authority, under the circumstances and at the time shown, was not binding on the principal, and should have been excluded." citing authorities. (Emphasis added.)
Thus it will be noted that in each of these three cases, Isaacs, Montgomery, and Red Arrow, the courts, in excluding the opinion, emphasized the fact that the speaker was a non-party to the suit, either an employee of defendant or a bystander. This is also true in the Galveston Transit Co. case, Tex.Civ.App., 408 S.W.2d 728 cited in Justice Nye’s opinion, where the appellate court held that it was not error for the trial court to exclude the res gestae opinion testimony of the driver of the car involved in the collision with appellant’s bus, since he was not a party to the suit, the evidence was cumulative, and it was undisputed that he ran a red light.
In our case the evidence excluded was not a spontaneous statement, and was not res gestae of the accident. However, in my opinion this is immaterial, since it was the defendant himself who spoke it. It was offered both as original and impeaching evidence, since the defendant had earlier denied making it. Although I believe that the excluded evidence should have been admitted, both as direct and impeaching testimony, I further feel that any error of the trial court became immaterial and harmless in view of the jury’s findings that the defendant was at fault. This is the ultimate holding of Judge Nye’s opinion, and I am in agreement therewith.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776460. Public record. Not legal advice.