C. E. Duke's Wrecker Service, Inc. v. Oakley

• Decision Date: 17 July 1975
• Docket Number: No. 16486,16486
• Citation: 526 S.W.2d 228
• Parties: C. E. DUKE'S WRECKER SERVICE, INC., et al., Appellants, v. Barbara OAKLEY et vir., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 228

526 S.W.2d 228

C. E. DUKE'S WRECKER SERVICE, INC., et al., Appellants, v. Barbara OAKLEY et vir., Appellees.

No. 16486.

Court of Civil Appeals of Texas, Houston (1st Dist.).

July 17, 1975.

Rehearing Denied Aug. 14, 1975.

Alvin Laser, John P. Venzke, Houston (Fulbright & Jaworski, Houston, of counsel), for appellants.

Kronzer, Abraham & Watkins, Robert E. Ballard, Houston, for appellees.

COLEMAN, Chief Justice.

This is an appeal from a judgment awarded the plaintiffs in a suit for the personal injuries suffered in an automobile collision. The judgment was entered on the verdict of a jury.

Appellants complain of the action of the trial court in admitting certain testimony and in overruling a motion for mistrial based on claimed injection of insurance into the case. They also claim that the evidence is insufficient to support certain items of damage found by the jury.

The first point of error complains of the action of the trial court in overruling the defendants' objection to the following question put to the plaintiff, Mrs. Oakley, by her counsel:

'O. K. Mrs. Oakley, I want to ask you: At this time, since the time of the collision up through December 10, 1971, and even on up until the day this trial started, have you been willing to be examined by anyone that Mr. Young (counsel for defendants) might choose in the form of a doctor to examine you to determine the nature of your injury?'

The objection was overruled and the question was answered 'Yes.' Subsequently the plaintiffs introduced into evidence a written interrogatory and the answer thereto addressed to defendants reading:

'. . . Do you desire to have our client examined by a doctor of your choice? . . .'

The answer, 'Not at this time,' was admitted over the objection of the counsel for the defendants. In both instances counsel for the defendants objected on the ground that permitting the question and answer would constitute a violation of Rule 167a(c) of the Texas Rules of Civil Procedure.

The rule referred to above reads:

'If no examination is sought either by agreement or under the provisions of this rule, the party whose mental or physical condition is in controversy shall not comment to the court or jury on his willingness to submit to an examination, on the right of any other party to request an examination or move for an order, or on the failure of such other party to do so.'

In paragraphs (a) and (b) of Rule 167a, supra, the trial court is authorized to require a party to submit to a physical or mental examination by a physician on motion for good cause shown, and, if requested by the party against whom the order is made, the party causing the examination to be made is required to deliver a copy of the written report of the examining physician to such party. After the delivery of such report the party causing the examination shall be entitled to demand a like report of any examination previously or thereafter made of the same condition. These provisions requiring exchange of medical reports are applicable also to examinations made by agreement of the parties. It is clear that under these sections of Rule 167a it was intended that the procedure for securing a medical examination of a party must be initiated by one other than the party to be examined.

In a commentary, Sales, Discovery under the Texas Rules of Civil Procedure, 37 Tex. Bar Journal 39, 43--44 (1974), the commentator states that the provisions of Rule 167a are new to Texas practice and are patterned, in substantial measure, on the Federal Rules. He states that absent other compelling considerations, the moving party is entitled to an examination by a physician of his own choosing, although this is not an absolute right and falls within the ambit of judicial discretion. Mr. Sales comments further:

'. . . This forecloses the common practice of forcing the defendant to request a medical examination in order to forestall comment to the jury that the plaintiff has always been ready and willing to submit to a medical examination if there was any dispute about his physical condition.'

It appears that the primary purpose of this rule was to provide a procedure by which a party whose physical condition is in dispute and is a material issue in a case can be required to submit to a physical examination by another party to the suit.

Paragraph (c) of Rule 167a, supra, must be construed in a like manner. We do not think the intention of the Supreme Court in promulgating this rule was to allow a party whose physical or mental condition is in question to require another party to the suit to have him examined by a physician on the penalty of opening his failure to do so to comment before the jury by merely offering to enter into an agreement to submit to a physical examination.

We are in accord with the commentary found in 1 W. Jordan, Modern Texas Discovery, Section 813, at 536--37 (1974), reading:

'Subdivision (c) provides that the party whose physical or mental condition is in controversy may not mention at the trial the failure of his adversary to move for an examination under Rule 167a, his right to so move, or his (the injured party's) willingness to submit to an examination. Apparently the philosophy motivating this provision is that the opportunity for an examination, offered by Rule 167a, is a privilege that may or may not be exercised, and that no penalty should attach to a party's failure, for whatever reason, to take advantage of the opportunity.'

The failure of the trial court to sustain the objections made to the testimony of Mrs. Oakley and to the admission on the part of the defendants was error. We must, therefore, consider whether or not such error requires a reversal of this case. Appellants contend that the provision of Rule 434, Texas Rules of Civil Procedure, is not applicable in this instance. Rule 434 requires this court to determine whether or not an error of the trial court is one which is reasonably calculated to and probably did cause the rendition of an improper judgment before ordering a reversal of a cause. Appellants contend that this is a mandatory rule and has the same force and effect of a statute. They argue that the matter is controlled by the recent opinion of the Supreme Court of Texas in Exxon Corporation v. Sue Brecheen, opinion delivered July 7, 1975, Tex., 526 S.W.2d 519, wherein the Court stated:

'. . . The Legislature has decreed in clear and explicit terms that evidence of the actual ceremonial remarriage of a surviving spouse is admissible in the statutorily authorized wrongful death action. The legislative determination forecloses judicial inquiry into the effect upon the fact finder of evidence that the surviving spouse has ceremonially remarried.'

Thus it appears that the Supreme Court has held that Rule 434 is inapplicable in a situation where the legislature has enacted a mandatory rule of procedure. If there is a failure to comply with a mandatory procedural rule enacted by the legislature, the error requires reversal. Appellants assert that the Texas Rules of Civil Procedure have the same force and effect as statutes. See, Missouri-Pacific Railroad Co. v. Cross, 501 S.W.2d 868 (Tex.1973); Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (Tex.1959). Appellants, therefore, conclude that the harmless error rule must also be inapplicable where there has been a violation of a mandatory rule of civil procedure as in this case.

It has long been established that where a rule of procedure established pursuant to the power vested in the Supreme Court conflicts with a legislative enactment, the rule must yield. Few v. Charter Oak Fire Insurance Co., 463 S.W.2d 424 (Tex.1971). Rule 167a stands on no higher plane than Rule 434. Rule 233, Texas Rules of Civil Procedure, provides that each party to a civil suit tried in district court shall be entitled to six peremptory challenges. However, the Supreme Court has held that the harmless error rule undoubtedly applies where a party is denied the number of peremptory challenges to which he is entitled. Tamburello v. Welch, 392 S.W.2d 114, 117 (Tex.1965). In Tamburello the Supreme Court reaffirmed the rule announced in Texas Employers Ins. Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, that an action or occurrence may be so highly prejudicial to the fairness of a trial that the burden of going forward with proof is met, prima facie at least, by simply showing the improper act and nothing more. The Court also stated that the burden of the complaining party is met by showing that the trial which resulted in a judgment against him was materially unfair. See also, Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818 (1945). Long prior to the adoption of Rule 434 the Supreme Court of Texas said:

'But the rules of procedure in the courts should be so framed as to secure substantial justice, and any oversight of the court or of counsel, which, within certain limitations, is not calculated to operate to the prejudice of the parties, and has not so operated, should be disregarded.' Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 561, 40 S.W. 391.

This rule was quoted with approval in Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314 (1939). A case should not be reversed merely as a penalty for the violation of a procedural rule even though the violation be flagrant and unprovoked. Loughry v. Hodges, 215 S.W.2d 669, 675 (Tex.Civ.App.--Ft. Worth 1948, writ ref'd n.r.e.). The purpose of the Act investing full rule making power in the Supreme Court of Texas was to enable the Supreme Court to promulgate rules that would avoid unnecessary delay and great and unnecessary expense to litigants and to the State, in the trial of cases and unnecessary reversals and new trials upon merely technical procedural grounds with consequent further delay and expense. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 340 S.W.2d 548 (Tex.Civ.App.--El Paso, 1960, writ ref'd n.r.e.).

We...