890 S.W.2d 899

(Cite as: 890 S.W.2d 899)

Court of Appeals of Texas,

El Paso.

James C. KRATZ, Appellant,

v.

EXXON CORPORATION and Exxon Corporation's "Atlas Products", et al., Appellees.

No. 08-93-00293-CV.

Dec. 22, 1994.

OPINION

KOEHLER, Justice.

This is a premises liability case in which it was alleged that an automobile service station negligently allowed a concrete cleaner to flow off the premises and onto a freeway access road, resulting in injuries to the operator of a motorcycle who skidded out-of-control on the cleaner into a one vehicle accident. The jury found that the negligence of neither party was the proximate cause of the accident and also found the operator was entitled to no damages. The operator of the motorcycle appeals from a take-nothing judgment based on the verdict, contending in three points that the trial court erred in not granting his motion for judgment n.o.v. because there was either no evidence or insufficient evidence to support the jury's findings of no negligence and no damages (Points of Error Nos. One and Two) and that the trial court erred in refusing to admit into evidence certain statements taken by the police from witnesses at the scene of the accident (Point of Error No. Three). We affirm.

RELEVANT FACTS

On December 19, 1985, employees of a service station owned by Exxon Corporation (Exxon), Appellee, located in Houston, Texas, cleaned the premises surrounding the station with a concrete cleaner. Some of the cleaner flowed off the premises onto the freeway access road adjacent to the station. James C. Kratz (Kratz), while driving over the cleaner, lost control of his motorcycle and crashed, suffering as a result, cuts, bruises, and pain to and in his left hip, arm, and back. Immediately after the accident, Kratz was transported to Hermann Hospital by helicopter, where he was treated for his injuries and released later that same day in good condition.

* * *

ADMISSIBILITY OF EYEWITNESS STATEMENTS

[15][16] In his third point of error, Kratz complains that the trial court erred in excluding from evidence his exhibits 19 and 20. These exhibits were written statements of two eyewitnesses to the accident which were part of the official police accident report. He contends that these witnesses' statements were admissible as evidence under the public records exception to the hearsay rule. See Tex.R.Civ.Evid. 803(8). In order to complain on appeal that the court erroneously excluded evidence, an appellant must show that he tendered the evidence before the trier of fact and obtained an adverse ruling thereon. Lakeway Land Co. v. Kizer, 796 S.W.2d 820, *905 827 (Tex.App.--Austin 1990, writ denied); Reveal v. West, 764 S.W.2d 8, 10 (Tex.App.--Houston [1st Dist.] 1988, no writ). In the instant case, the record shows that Kratz made an offer of the police report in its entirety, which included two eyewitness statements, in a pretrial hearing. The trial court admitted the police report but sustained Exxon's hearsay objection and excluded the two witnesses' statements at that time. However, Kratz failed to reoffer the excluded statements before the jury during the trial itself and obtain a ruling thereon. Thus, the claimed error was not preserved for appellate review.

[17][18][19] However, even if Kratz had preserved error, his third point of error would still be overruled. He contends that the eyewitnesses' statements were admissible under the public records exception to the hearsay rule. [FN2] See Tex.R.Civ.Evid. 803(8). Under Rule 803(8), certain written statements, which would normally be excluded as hearsay, may be admitted into evidence if they qualify as public records and reports, even though the declarant is available to testify:

FN2. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex.R.Civ.Evid. 801(d). Exhibits 19 and 20 therefore constitute the clearest form of hearsay. They were statements made by persons not testifying at trial offered to prove the truth of the matters contained therein, i.e. the negligence of Exxon. Therefore, unless the statements come within an exception to the hearsay rule they were properly excluded.

Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, or (C) 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.Civ.Evid. 803(8). The witnesses' statements offered by Kratz do not fall into any of the above three categories so as to be admissible under this exception. The statements do not qualify under (A) as they do not set forth the activities of the office or agency. [FN3] See Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex.App.--Texarkana 1991, writ denied), cert. denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250 (1992); Railroad Commission of Texas v. Rio Grande Valley Gas Co., 683 S.W.2d 783, 788 (Tex.App.--Austin 1984, no writ). The statements also do not qualify under (B) as they do not involve matters observed pursuant to a duty imposed by law as to which there was a duty to report. [FN4] Bounds v. Scurlock Oil Co., 730 S.W.2d 68, 71 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.). Finally, the statements do not qualify under (C) as they do not constitute factual findings resulting from an investigation made pursuant to authority granted by law. [FN5]

FN3. Rule 803(8) would be applicable only if the statement were prepared by public officials or employees under their supervision in the performance of their official duties.

FN4. To qualify under (B), the matters would have to have been observed by the police officer not the witnesses. See Brown & Root, Inc. v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 341 (1944); Flores v. Missouri-Kansas-Texas Railroad Co., 365 S.W.2d 379, 382 (Tex.Civ.App.-- Dallas 1963, writ ref'd n.r.e.).

FN5. The officer's written findings in the report qualify under (C) not the statements of the witnesses.

In support of his argument, Kratz cites Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176 (Tex.App.--Amarillo 1992, writ denied); Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex.App.--Texarkana 1991, writ denied), cert. denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250 (1993); and Castro v. Sebesta, 808 S.W.2d 189 (Tex.App.--Houston [1st Dist.] 1991, no writ). These cases, however, are inapposite.

Carter held that the accident report itself is admissible, not the statements contained within that report. Carter, 835 S.W.2d at *906 181. [FN6] In Fibreboard, the trial court admitted into evidence over a hearsay objection, a poster offered by plaintiff that was on file with OSHA. The appellate court found that the document at issue was inadmissible as it was not prepared by a governmental official pursuant to a duty, but determined the error to be harmless in light of the other evidence. Fibreboard, 813 S.W.2d at 675-76. In Castro on the other hand, the Court held that the defendant's driving record, which was authenticated and certified by the custodian of records in accordance with Tex.R.Civ.Evid. 902(4), was erroneously excluded and should have been admitted under Rule 803(8) because it contained matters relevant and admissible to show the context of his actions on the night of the accident which gave rise to the lawsuit. Unlike the instant case, the defendant's driving record contained no eyewitness or third party statements. Castro, 808 S.W.2d at 195. In our case, the trial court did admit the accident report minus the two witnesses' statements during a pretrial hearing and testimony concerning the report was permitted without objection during the trial itself. This is all that any of these cases or Rule 803(8) requires. Kratz' third point of error is overruled.

FN6. See also First Southwest Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954, 959 (Tex.App.--Texarkana 1989, writ denied), which held a fire marshall's report admissible but the witness's statements regarding the cause of fire inadmissible.

Judgment of the trial court is affirmed.

END OF DOCUMENT