# Southwestern Bell Telephone Company v. Johnson

> Texas Supreme Court · March 31, 1965 · 389 S.W.2d 645

URL: https://www.frixlaw.com/law-library/cases/9778185

## Case

- **Full name:** SOUTHWESTERN BELL TELEPHONE COMPANY and James Cozart, Petitioners, v. Robert Richard JOHNSON, Respondent
- **Court:** Texas Supreme Court
- **Decided:** March 31, 1965
- **Citations:** 389 S.W.2d 645
- **Precedential status:** Published
- **Opinion:** Dissent by Walker
- **Judges:** Smith, Calvert, Walker
- **Cited by:** 204 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/9778185

## How later opinions describe it (automated extraction)

- holding that the mere fact or circumstance that a trial judge may decide a matter within his discretionary authority in a manner different from what an appellate judge would decide if placed in a similar circumstance does not demonstrate that an abuse of discretion has occurred

## Opinion text

WALKER, Justice
(dissenting).
I respectfully dissent. The mere fact that a witness has heard part of the evidence at the trial should not constitute a basis for excluding his entire testimony when the purpose of the rule for sequestration of witnesses has not been subverted in any way. I agree that it lies within the power of the trial court, in the exercise of a sound judicial discretion, to exclude the testimony of a witness who has violated the rule or was not placed under the rule when it was invoked. See Sherwood v. State, 42 Tex. 498 ; Goins v. State, 41 Tex. 334 ; American Automobile Ins. Co. v. Struwe, Tex.Civ.App., 218 S.W. 534 (wr. ref.); Richardson v. Herbert, Tex.Civ.App., 135 S.W. 628 (wr. ref.); Vaughn v. Gulf Ins. Co., Tex.Civ.App., 151 S.W.2d 227 (no writ). I also recognize that the action of the trial judge is not to be disturbed merely because the appellate court would have ruled otherwise in the first instance. See Jones v. Strayhorn, 159 Tex. 421 , 321 S.W.2d 290 .
When all of the relevant circumstances are considered in the light of the underlying purpose of the rule, however, it is my opinion that this case presents a rather *649 clear example of abused discretion. The practice of separating witnesses is an ancient expedient designed to prevent one witness from being taught by the testimony of another. See VI Wigmore, Evidence, 3rd ed. 1940, § 1837. As pointed out by Chief Justice McClellan in Louisville & N. R. Co. v. York, 128 Ala. 305 , 30 So. 676 :
“The purpose to be subserved in putting witnesses under the rule is that they may not be able to strengthen or color their own testimony, or to testify to greater advantage in line with their bias, or to have their memories refreshed, sometimes unduly, by hearing the testimony of other witnesses; and it is legitimate argument against the veracity or fairness of a witness to say that his testimony has been developed along the lines of his inclination in the case by the opportunities he has had, from hearing the other witnesses, to refute them or to amplify his own statements to meet the exigencies of the trial.”
The witness Blakey did not see the accident and was not called to establish any of the facts or circumstances surrounding the same. He was placed on the stand for the sole purpose of identifying a taped voice recording of a conversation he claimed to have had with petitioners’ witness Watson. To understand the significance of the recording, it should be noted that petitioners’ liability probably turns, in the last analysis, upon whether the trier of fact believes that Cozart knew, or should have known, that Johnson was working on the meter in front of the truck. There is a sharp dispute in the evidence bearing on this issue. Johnson testified that Cozart climbed a pole in front of the truck and then passed within three or four feet of him on the way back to the truck. Cozart stated that he did not climb the pole and did not walk past Johnson just before starting the truck. Johnson’s boss, Chumley, testified that his best recollection was that Cozart did climb the pole, but that he did not remember and would not say he did. With the testimony thus conflicting, petitioners called Watson, an ostensibly disinterested witness, who corroborated Cozart’s testimony that he did not climb the pole. The jury found in Cozart’s favor that he was not aware of Johnson’s presence and did not fail to keep a proper lookout.
Watson’s credibility was thus a vital point in the case. In the recording of the purported conversation between Blakey and Watson, the latter stated several times that Cozart did climb the pole as contended by respondent. This is the evidence which was kept from the jury when the trial court excluded Blakey’s testimony. Watson could not recognize his voice on the recording and stated flatly that he did not make any of the statements contained in the recording.
Although Blakey was in the courtroom during part of the trial, the undisputed evidence shows that he did not hear Watson testify. The testimony he did hear had no bearing whatsoever upon the evidence which respondent sought to elicit from him. The fact that he had heard some of the witnesses was thus utterly irrelevant to a determination of whether he should be permitted to identify the tape recording. Blakey’s presence in the courtroom clearly did not enable him to shape his testimony to better advantage, because he did not hear Watson and no other witness touched even remotely upon the facts concerning which he was to be interrogated.
The facts here are somewhat similar to those in Johnson v. Cooley, 30 Tex.Civ.App. 576 , 71 S.W. 34 (no writ), although that was a stronger case for excluding the evidence. There the witness who had not been placed under the rule was told by the defendant of the testimony given by the plaintiff on one issue. The trial court refused to allow the witness to testify, but the Court of Civil Appeals held that this was an abuse of discretion and said:
“The information given the witness by the appellant as to the testimony of *650 plaintiff could only have affected 'the testimony of the witness upon one of the points in issue between the parties, and the testimony of this witness was vitally material to the appellant upon all of the issues in the case. He alone knew the exact details of the transaction under investigation, and could give the amounts for which the property sold, and -the items of expense in handling the property and making the sales. There being no other source from which this evidence could be supplied, his testimony should not have been excluded on this point, at least. The evidence in the case as to the amounts for which the property sold, and the expenses of making such sale, is of the most indefinite and uncertain character, and the exclusion of this testimony was manifestly injurious to appellant.”
Courts are usually more inclined to uphold the action of the trial court in excluding the testimony of a witness who has violated the rule where the party calling the witness was at fault in causing or permitting the violation and the excluded evidence is not vital to such party’s case but merely cumulative in nature. It has already been pointed out that Blakey’s testimony and the tape recording he would have identified were crucial to respondent’s case. If respondent or his attorney was guilty of any indiscretion, their only mistake was in failing to swear Blakey as a witness or keep him out of the court room at a time when Watson had not appeared or been called as a witness, was not under subpoena, and there was no reason to believe that he would deny his statements recorded on the tape. Unless the power to exclude the testimony of a witness may be used merely as a punitive weapon to penalize a party for lack of foresight, it seems to me that there is no basis whatsoever for refusing -to allow Blakey to identify the tape recording.
So far as I have been able to determine, this is the first Texas case to condone the exclusion of testimony for a violation of the rule where it appears: (1) that the excluded testimony was vital to the case of the complaining party; and (2) that the excluded testimony could not possibly have been affected by the fact that the rule was violated or the witness was not placed thereunder; and (3) that the complaining party did not connive in the violation in an attempt, to “educate” the witness and thus gain some advantage at the trial. In my opinion the exclusion of Blakey’s testimony was- clearly erroneous, and the error was reasonably calculated to and probably did cause the rendition of an improper judgment. 1 would affirm the judgment of the Court of Civil Appeals.
CALVERT, C. J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778185. Public record. Not legal advice.