Houston Oxygen Company v. Davis

161 S.W.2d 474 (Tex. Comm’n App. 1942)

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Nature of the Case

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Facts

P filed this suit against D and Oliver O. Stanbury, for damages for injuries sustained by Charles Aoolebhy, P's minor son in a traffic accident. Ds contend that it was error in holding inadmissible a statement offered by Mrs. Cooper that on the date of the accident a Plymouth car headed north in which the minor and several other colored passengers were riding passed her about four or five miles from the scene of the accident; that she at the time was driving a car in the same direction on the highway and that Jack Sanders and E. C. Cooper, her brother-in-law, were passengers with her. Sanders testified the Plymouth passed them on a curve of the highway traveling 'sixty or sixty-five miles' an hour, about four miles from the scene of the accident and that as it went out of sight it was 'bouncing up and down in the back and zig-zagging.' Sanders commented that 'they must have been drunk, that we would find them somewhere on the road wrecked if they kept that rate of speed up.' Cooper’s testimony was essentially the same. The court deemed that this testimony was hearsay and it was excluded. The Court of Appeals affirmed, and D appealed.