Circle Y of Yoakum v. Blevins, 6-91-030-CV

• Decision Date: 10 March 1992
• Docket Number: No. 6-91-030-CV,6-91-030-CV
• Citation: 826 S.W.2d 753
• Parties: CIRCLE Y OF YOAKUM, Appellant, v. Sharlene BLEVINS, Appellee.
• Court: Texas Court of Appeals

Page 753

826 S.W.2d 753

CIRCLE Y OF YOAKUM, Appellant, v. Sharlene BLEVINS, Appellee.

No. 6-91-030-CV.

Court of Appeals of Texas,

Texarkana.

March 10, 1992.

Rehearing Denied April 7, 1992.

Charles T. Frazier, Jr., Cowles & Thompson, Dallas, Charles Connolly, Merriman, Patterson & Allison, Longview, for appellant.

Ron Adkison, Wellborn, Houston, Adkison, Mann, Sadler, Henderson, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

This is a products liability case. Sharlene Blevins was injured when she fell from a horse after a strap on her saddle broke. The saddle was designed by Circle Y of Yoakum and Martha Josey, manufactured by Circle Y, and sold by Josey Enterprises. Arthur Harris, a friend of Blevins, purchased the saddle and gave it to her in April 1987. Before her accident, Blevins adjusted the saddle strap by cutting about seven inches off and punching two holes in it.

The accident occurred when Blevins competed in a barrel racing event in Tyler. The strap tore and Blevins fell. She injured her head, hand, ribs, and left shoulder. Surgery was successfully performed on her shoulder and hand in July 1987. In August, Blevins' surgeon approved her for part-time work. He cleared her for full-time work, with a thirty pound lift restriction, in September. She was allowed to lift as much as seventy pounds in November. Blevins' initial injuries and subsequent treatments also led to other problems, such as depression and difficulty withdrawing from prescribed painkillers.

Blevins sued Circle Y and Josey Enterprises for damages. In a jury trial, she obtained favorable findings on her claims of design defect, manufacturing defect, breach of implied warranty of merchantability, negligence, Deceptive Trade Practices Act violations, and gross negligence. The jury ascribed 100% causation to Circle Y and awarded Blevins $1,320,000.00 in actual damages and $20,000.00 in exemplary damages. The trial court disregarded the exemplary damages finding, but left the gross negligence finding undisturbed. The final verdict was for $1,571,592.00, including prejudgment interest. Circle Y does not challenge any other liability findings.

Circle Y's motion for new trial, raising the contentions now before this Court, was overruled. Josey Enterprises was granted an instructed verdict and is not a party to the appeal.

In twelve points of error, Circle Y contends that the trial court erred in (1) denying its challenge for cause to a venireman; (2) admitting hearsay testimony by Arthur Harris; (3) admitting the testimony of an improperly designated expert witness; (4) sustaining an "outside the record" objection to Circle Y's closing argument; (5) allowing Blevins' counsel to make improper closing argument; (6) admitting various medical records; and (7) submitting the gross negligence liability question to the jury.

Circle Y also asserts that there is factually insufficient evidence to support the monetary damages and that the damages are excessive.

In a single cross-point, Blevins contends that the trial court improperly disregarded the jury's findings of exemplary damages.

Circle Y first asserts that the trial court erred in denying its challenge to a certain juror. If the challenge should have been sustained, harmful error occurs if the party uses all allotted peremptory challenges and cannot strike other objectionable jurors because the trial court refused to strike the disqualified juror. However, to preserve error, the complaining party must advise the court of the situation before the peremptory challenges are exercised. Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888, 890 (Tex.1985); King v. Graham Holding Co., 762 S.W.2d 296, 302 (Tex.App.--Houston [14th Dist.] 1988, no writ); Red River Pipeline v. Amonett, 695 S.W.2d 802, 807 (Tex.App.--Amarillo 1985, no writ); Carpenter v. Wyatt Construction Co., 501 S.W.2d 748, 750 (Tex.Civ.App.--Houston [14th Dist.] 1973, writ ref'd n.r.e.). Circle Y did not inform the trial judge of its predicament until the day after the jury was empaneled; consequently, it waived any error in this regard.

Circle Y next contends that the trial court erred in overruling its hearsay objection, motion to disregard, and motion for mistrial based on Arthur Harris' testimony.

Harris testified about his conversations with third parties concerning Circle Y's saddles. Circle Y filed a bystander's bill of exceptions reflecting that its hearsay objections were made and overruled at an unrecorded bench conference before the testimony was received.

The trial court prepared its own bill which stated that the hearsay objection was sustained, after which the testimony was admitted "on other grounds" without objection.

We find Circle Y's bystander bill fatally defective because the affiants were all attorneys involved in the case. In Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139 (1950), the Texas Supreme Court held that bystander's bills are defective if supported only by affidavits of attorneys participating in the case. In Harris County Flood Control Dist. v. Cohen, 282 S.W.2d 917 (Tex.Civ.App.--Galveston 1955, writ ref'd n.r.e.), the court held that the term "bystander" "relates to one who has no concern in the outcome of the case on trial." Id. at 919. ¹ Since all the affiants in the present case were interested in the outcome, Circle Y's bystander bill has no validity and may not be considered by this Court.

This leaves us with the trial court's bill showing that the evidence was admitted on other grounds. A timely objection or request and ruling are necessary to preserve error for appeal. TEX.R.APP.P. 52(a). Since Circle Y made no objection or request for a limiting instruction after the trial court ruled the evidence was admissible on other grounds, no complaint has been preserved. See e.g., Magnolia Petroleum Co. v. Johnson, 176 S.W.2d 774, 778 (Tex.Cir.App.--Fort Worth 1943, no writ).

Circle Y also contends that the trial court erred in admitting the testimony of an improperly designated expert witness. The expert, Dr. Brown, was designated in a written supplemental response to Circle Y's interrogatories. The supplementary designation was verified by Blevins' attorney rather than by Blevins herself. Circle Y argues that the verification was insufficient and the testimony was inadmissible. ²

Circle Y relies on cases where a party totally failed to supplement responses. Sharp v. Broadway Nat'l Bank, 784 S.W.2d 669 (Tex.1990); Stiles v. Royal Ins. Co. of America, 798 S.W.2d 591 (Tex.App.--Dallas 1990, writ denied); see also, Boothe v. Hausler, 766 S.W.2d 788 (Tex.1989); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). None is on all fours with the present case.

Jones v. Kinder, 807 S.W.2d 868 (Tex.App.--Amarillo 1991, no writ), involved an unverified supplementary response designating an expert witness. That court saw TEX.R.CIV.P. 168(5) as requiring verification of original answers to interrogatories, but, finding no specific verification requirement in TEX.R.CIV.P. 166b(6)(b)'s duty to supplement, held that additional verification is not necessary when a party timely supplements answers to interrogatories in writing. Jones v. Kinder, 807 S.W.2d at 872-73. We agree and hold that Blevins' supplementary response properly designated Dr. Brown as an expert witness.

Circle Y complains that the trial court erred in sustaining Blevins' objection to comments by defense counsel in closing argument. Defense counsel commented about statements in a medical record. Blevins' counsel objected, claiming that the record was not in evidence. Apparently, the judge asked defense counsel at an unrecorded bench conference to show him the record, but counsel could not find it. The court then sustained the objection and instructed the jury to disregard the comments.

As a matter of fact, the record was in evidence. The question becomes, then, whether the court's exclusion of the argument was so harmful as to require a new trial. After final arguments were concluded, the court held a hearing on the matter. It determined that the exhibit had been placed in evidence and allowed it to go to the jury during deliberations along with all other exhibits.

Litigants are entitled to argue about matters in evidence, Texas Sand Co. v. Shield, 381 S.W.2d 48, 57-58 (Tex.1964); TEX.R.CIV.P. 269(e), and refusal to allow such argument is error. Stockwell v. Snyder, 126 Tex. 6, 84 S.W.2d 705, 707 (1935). Since the evidence was before the jury during its deliberations, this error, standing alone, may not have been such a denial of Circle Y's rights as was reasonably calculated to cause and probably did cause an improper judgment. TEX.R.APP.P. 81(b)(1). However, closely tied to the preceding complaint is Circle Y's contention that Blevins' counsel made improper comments and engaged in improper jury argument during final summations. The following argument and exchanges occurred:

[Argument by defense counsel]:

[DEFENSE COUNSEL]: ... That's the only problem that she expressed to Dr. McGinty, October of 1987. "The only problem that she is having now is that of recurrent breast nodularity and fear that this may inhibit her from being able to ride."

....

[PLAINTIFF'S COUNSEL]: ... That's not in this record. I don't know where that came from, but that ain't in this record.

....

THE COURT: All right. I'll sustain the objection.

[PLAINTIFF'S COUNSEL]: I ask the Jury be instructed to disregard that.

THE COURT: The Jury is so instructed.

[PLAINTIFF'S COUNSEL]: And ask Counsel be instructed not to be bringing exhibits in here that are not in evidence.

THE COURT: Stay in the record.

....

[PLAINTIFF'S COUNSEL]: Your Honor, I have another objection. I've gone through the Schumpert record, and the other record that he's exhibited to the Jury is not in the Schumpert record either as he's represented to the Jury.

....

[Argument by plaintiff's counsel]

[PLA...