McCraw v. Maris , 828 S.W.2d 756 ( 1992 )

OPINION

HIGHTOWER, Justice.

The issue before this court is whether certain evidence was admissible in an action to determine whether the surviving spouse or the surviving children of Donna Ann Maris are entitled to the proceeds of her life insurance policy. After excluding certain evidence, the trial court determined that the surviving spouse was entitled to the life insurance proceeds. The court of appeals affirmed. — S.W.2d -. We reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings on all issues.

Donna Ann Maris was an employee of the United States Department of Labor and had obtained life insurance under a Federal Employee’s Group Life Insurance policy. Under federal statute,¹ the life insurance proceeds are paid to the surviving spouse of the deceased employee unless the employee signed a written beneficiary designation form and filed it with the employing office. At her death in 1987, Donna Ann Maris was survived by her estranged husband, Jimmie L. Maris (“Maris”),² and two children from a prior marriage, Tracy L. McCraw and Kristina N. McCraw (“McCraws”).³ The McCraws, the surviving children, filed suit for declaratory judgment asserting that they were entitled to the life insurance proceeds because Donna Ann Maris signed and filed the appropriate form with the employing office designating them as beneficiaries and the beneficiary designation form was subsequently lost. Maris, the surviving spouse, counterclaimed asserting that he was entitled to the life insurance proceeds. During trial, the court admitted testimony that two co-employees witnessed Donna Ann Maris’ signature on some forms and that it was Donna Ann Maris’ habit to complete handwritten duplicate forms prior to typing and filing the original form. However, the court excluded, among other things, a “duplicate beneficiary designation form” in the handwriting of Donna Ann Maris. The trial court determined that the surviving spouse was entitled to the life insurance proceeds. The court of appeals held that the trial court did not err in excluding the “duplicate beneficiary designation form.”

The McCraws argue that the duplicate beneficiary designation form in the handwriting of Donna Ann Maris was admissible. We agree.

We consider whether the duplicate beneficiary designation form constitutes hearsay and, if it does, whether it qualifies under any exception to the hearsay rule. Rule 801(d) of the Texas Rules of Civil Evidence defines hearsay 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). The duplicate beneficiary designation form was offered to prove that Donna Maris followed her usual habit of typing and filing a form from the draft. Although the duplicate beneficiary designation form is an out-of-court statement, it is not hearsay because it was not offered to prove the truth of any matter asserted within it, but only that it existed. Out-of-court statements are not hearsay if offered for a purpose other than to prove the truth of the matter asserted. Turner, Collie & Braden v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982). Since the duplicate beneficiary designation form was offered only to prove its existence, we conclude that it was not hearsay. As a result, we hold that the duplicate beneficiary designation form in the handwriting of Donna Ann Maris was admissible.

Since we have determined that exclusion of the “duplicate beneficiary designation form” was erroneous, we must determine whether the exclusion constituted reversible error. For the exclusion of evidence to constitute reversible error, the complaining party must show (1) that the trial court committed error and (2) that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Gee v. Liberty Mut. Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); Tex.R.App.P. 81(b)(1). Since we have determined that the trial court committed error when it excluded the “duplicate beneficiary designation form,” we must determine whether the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. This court has recognized “the impossibility of prescribing a specific test for determining whether any error ... [including] the improper admission or exclusion of evidence ... ‘was reasonably calculated to cause and probably did cause the rendition of an improper judgment.’ ” Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 821 (Tex.1980). “Such a determination necessarily is a judgment call entrusted to the sound discretion and good senses of the reviewing court.” Id. However, it is not necessary for the complaining party to prove that “but for” the exclusion of evidence, a different judgment would necessarily have resulted. The complaining party is only required to show that the exclusion of evidence probably resulted in the rendition of an improper judgment. Howard v. Faberge, Inc., 679 S.W.2d 644, 648 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). See King v. Skelly, 452 S.W.2d 691, 696 (Tex.1970). In making this determination, the court must review the entire record. Gee v. Liberty Mut. Ins. Co., 765 S.W.2d at 396; Lorusso v. Members Mut. Ins. Co., 603 S.W.2d at 821.

Under the McCraws’ theory of the case, it is necessary that they prove (either directly or by circumstantial evidence) that Donna Ann Maris signed and filed the appropriate form with the employing office designating them as beneficiaries. Evidence of the duplicate beneficiary designation form in the handwriting of Donna Ann Maris combined with admitted evidence that it was Donna Ann Maris’ habit to complete handwritten duplicate forms prior to typing and filing the original constitutes crucial circumstantial evidence concerning proof that Donna Ann Maris signed and filed the appropriate beneficiary designation form. Under these circumstances, the McCraws have demonstrated that exclusion of the “duplicate beneficiary designation form” was reasonably calculated to cause and probably did cause rendition of an improper judgment.⁴

We reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings on all issues.

1 . 5 U.S.C.A. § 8705(a) (West 1967 & Supp.1990).

2 . At the time of her death, Donna Ann Maris and Jimmie Maris had been married for approximately 7 years. However, although they were never divorced, they had been separated for more than 6 years.

3 . Tracy L. McCraw, the surviving son of Donna Ann Maris, was twenty-one years old at the time of his mother’s death. Kristina N. McCraw, the surviving daughter of Donna Ann Maris, was thirteen years old at the time of her mother's death. Lena J. Wiggins, the mother of Donna Ann Maris, is the Independent Executrix of the Estate of Donna Ann Maris. Ms. Wiggins is a party to this suit in a representative capacity as the Independent Executrix of the Estate of Donna Ann Maris and as Next Friend of Kristina N. McCraw.

4 . The McCraws also asserted points of error complaining of the trial court’s exclusion of (1) the testimony of four witnesses who had inspected their personnel files and found that the employing office had lost their beneficiary designation forms and (2) evidence of Donna Ann Maris’ intent to name her children as her sole heirs including her statement that she had filed beneficiary forms designating them as beneficiaries. Because we reverse and remand, the court of appeals’ judgment and opinion are vacated and do not control the disposition of these evidentiary issues on retrial.