# Gonzalez v. Layton > Court of Appeals of Texas · May 31, 1968 · 429 S.W.2d 215 URL: https://www.frixlaw.com/law-library/cases/9776461 ## 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 Sharpe - **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/9776461 ## Opinion text CONCURRING OPINION SHARPE, Justice. I concur in affirmance of the judgment for the reasons stated in this opinion. I agree that appellants’ first and second points of error are without merit and should be overruled. The jury findings in answer to special issues 8 and 9 that appellant Beatrice Gonzalez failed to keep a proper lookout and that such failure was a proximate cause of the collision in question are not against the great weight and preponder- *221 anee of the evidence as to be manifestly wrong and unjust. Appellants’ recovery herein was precluded only because of such unfavorable findings since other jury findings established three separate grounds of recovery against appellee along with findings of damage. The overruling of appellants’ first two points leaves only the question as to whether their point three presents reversible error. I agree that it does not. In my view, the exclusion of the testimony of the witness Malinowski to the extent it attributed the statement “I guess it was my fault” to the appellee, was not error. The statement is not sufficient to show that appellee made a statement of fact or a statement which amounted to a shorthand rendition of the facts or that appellee even expressed a firm opinion about the subject of fault. The statement amounted to no more than a “guess” about a conclusion — that of fault. The word “fault” can be used to express a conclusion of fact or a mixed conclusion of fact and law, and sometimes may express a conclusion of law. According to the witness Malinowski, the above-mentioned statement followed another statement by appellee that “I don’t know why it happened.” The ruling of the trial judge excluding the testimony that appellee made the statement “I guess it was my fault” can be sustained on the basis that it was not shown to be anything more than surmise, conjecture or speculation. It is further my view that exclusion of the tendered testimony does not require consideration of its admissibility under rules relating to res gestae. In the court below appellants did not offer the testimony of the witness Malinowski on the basis that appellee had made a statement which was part of the res gestae, nor have appellants presented or argued their third point in this Court on the basis of res gestae. Appellants’ offer of such testimony in the trial court and their argument in this Court was and is on the basis that the statement attributed to appellee was admissible as an admission against interest (contending that it was a short-hand rendition of the facts) and for impeachment. I do not believe that we need to reach any of these questions for the reasons heretofore stated, i. e., the attributed statement could have been and was properly excluded because it was a “guess” about a conclusion and involved at best only surmise, conjecture or speculation. The parties herein have not cited any Texas case directly involving the word “guess”. The Texas Digest volume on Words & Phrases does not list or index the word. In 23 Tex.Jur.2d, Evidence, Sec. 455, page 662, it is stated: “Opinions in the nature of mere guesses, surmises, and conjectures are inadmissible” with a reference to footnote number 12 which collects a large number of cases, mostly decisions of the Texas Court of Criminal Appeals. Representative of these cases is Gilbreth v. State, 124 Tex.Cr.App. 465 , 63 S.W.2d 560, 561 (1933), in which the Court held: “However, an opinion or impression which is a mere guess is not admissible.” In Volume 18A of the permanent edition of Words & Phrases under the word “guess” there is a collection of fourteen cases, including those in the pocket part, from other jurisdictions. Several of these cases involve testimony given on the witness stand or by deposition where the word “guess” was sometimes used by the witnesses concerning the facts involved, such as speed, distance, size or time. See Smith v. Commonwealth of Kentucky, 282 S.W.2d 840 (Ct.Appeals, Ky., 1955); State v. Clayton, 272 N.C. 377 , 158 S.E.2d 557 (Sup.Ct. N.C., 1968); Finnerty v. Darby, 391 Pa. 300 , 138 A.2d 117 (Sup.Ct.Pa.1958), dissenting opinion of Justice Musmanno at 138 A.2d 128 . In Smith v. Commonwealth of Kentucky, supra, the court held in part as follows: “Error is claimed in the admission of the testimony of John Grigsby. He was directly across the hollow from the highway and about 360 feet from the point where the woman was struck and had *222 seen the car coming about a hundred yards before it struck her. He testified that he had ridden in automobiles and trucks enough to be able to fairly judge the speed of an oncoming car and that ‘as near as I could say, it might have been running about 50 or 60 miles per hour.’ On his cross-examination, he said he was ‘guessing’ at the speed ‘but a man can make a pretty good guess.’ The appellant contends the testimony was inadmissible because the witness was not qualified to express a judgment or opinion; that he had no opportunity and was in no position to judge the speed; and, that he was merely guessing at the rate. “The rate of speed of an automobile at a given time can rarely be given with anything like mathematical exactness, so that an estimate of speed or expression of opinion in regard to it is generally viewed as a matter of common observation of a fact rather than of an expert opinion requiring technical knowledge. A witness testifying to the speed of an automobile is not required to have any special skill or expert training but is competent to testify if he is able to understand and appreciate the common factors of time and distance. His qualification and opportunity of observation and all the attendant conditions and circumstances affect the weight of his testimony, which is, of course, for the jury to determine. Wilder v. Cadle, 227 Ky. 486 , 13 S.W.2d 497 ; Rose v. Edmonds, 271 Ky. 36 , 111 S.W.2d 427 ; Miracle v. Flannery’s Adm’r, Ky., 259 S.W.2d 689 . The term ‘guess’ is not regarded as being a mere conjecture or speculation but as a colloquial way of expressing an estimate or opinion. It is a word frequently used where a witness is called upon to make estimates of speed or distance or size or time. Like the words ‘suppose’ or ‘think’, it is commonly used as meaning the expression of a judgment with an implication of uncertainty. Webster’s International Dictionary. Collier v. Commonwealth, 303 Ky. 670 , 198 S.W.2d 974 .” The above-cited case was followed by the Supreme Court of North Carolina on the question of testimony as to speed in State v. Clayton, supra. In Finnerty v. Darby, supra, the Supreme Court of Pennsylvania considered the word “guess” in connection with the subject of speed of a vehicle and held the testimony admissible where it was apparent that the witness was expressing an opinion based on observation, was unable to testify as to exact speed and was giving his best opinion of approximate speed. Justice Musmanno dissented for a number of reasons. His discussion of the use of the word “guess” is found at 138 A.2d 137 -139. In his view, the testimony of a witness who sometimes used the word “guess” as to speed of a vehicle was inadmissible where it was coupled with testimony that “I don’t know.” The concluding paragraph of Justice Mus'manno’s dissenting opinion on the phase of the case involving a “guess” is as follows: “Of course, it is true, as quoted in the Majority Opinion, that on two or three occasions in a deposition of some 65 pages the witness did give an approximation of the speed of Finnerty’s car before the accident, but his deposition was so interspersed, interlarded, and intermixed with ever-recurring T don’t knows’ as to ruin its probative value. At any rate, what I deplore is the fact that the Majority, by placing its stamp of approval on this type of testimony, invites a transformation of the witness stand into a conjecturing stand, and does not even frown upon a 13th chair being drawn up in the jury room to accommodate a frowsy visitor who has no right in the Halls of Justice anywhere — Mr. Guess himself.” In this case we are not dealing with a witness on the stand who uses the word “guess” in connection with his own testimony involving matters of fací such as *223 speed, distance, size or time. Instead, we are here concerned with a witness not a party to the suit and not a witness to the accident in question who gives testimony as to what the appellee told him at some undetermined time after the accident involving a “guess” about fault, coupled with another statement of appellee that “I don’t know why it happened.” I am unwilling to hold that the trial judge committed error in excluding the proffered testimony of the witness Malinowski. I do not believe that the testimony was of such a nature as to be admissible on the record presented here. However, if it was admissible on any of the theories relied upon by appellants, I am convinced that appellants have not demonstrated the error in excluding it was reasonably calculated to cause and did cause rendition of an improper judgment. Rule 434 Texas Rules of Civil Procedure. For the foregoing reasons I have voted to affirm the judgment of the trial court denying appellants a recovery. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776461. Public record. Not legal advice.