City of San Antonio v. Vela, 04-87-00683-CV
Decision Date | 07 December 1988 |
Docket Number | No. 04-87-00683-CV,04-87-00683-CV |
Citation | 762 S.W.2d 314 |
Parties | CITY OF SAN ANTONIO, Appellant, v. Gilbert Roland VELA, Appellee. |
Court | Texas Court of Appeals |
Paula Dlugosz, Asst. City Atty., San Antonio, for appellant.
W. Burl Brock, Catherine M. Stone, Watkins, Mireles, Brock & Barrientos, San Antonio, for appellee.
Before CADENA, C.J., and REEVES and CHAPA, JJ.
Appellant, City of San Antonio, appeals an adverse judgment entered pursuant to a jury verdict in favor of appellee, Gilbert Roland Vela. The judgment resulted from a trial for personal injuries sustained by appellee as a result of an automobile collision.
The issues are
1) whether the trial judge committed reversible error in admitting the testimony of the appellee's three treating doctors;
2) whether the trial court committed reversible error in admitting the testimony of eyewitness Arturo Garza;
3) whether the trial judge committed reversible error in admitting testimony concerning lost wages;
4) whether the jury's award for loss of earnings in the past is supported by "no legally sufficient evidence";
5) whether the trial court committed reversible error in permitting appellee to testify regarding chest tumors experienced by him;
6) whether the jury's award for future medical expenses is supported by "no legally sufficient evidence."
The cause of action arose as a result of an intersectional collision between a vehicle in which appellee was a passenger, and a City of San Antonio Fire Department truck. Appellee received extensive injuries and was treated by numerous doctors, including Doctors Eichler, Villarreal-Rios, and Maniatis. Conflicting testimony was presented as to which vehicle had the green light, but eyewitness Arturo Garza testified that the fire truck had the red light. The jury found 5% negligence attributable to Angela Ortiz, the driver of the vehicle in which appellee was a passenger, and 95% negligence attributable to the City. The City has appealed.
Initially, appellant contends the trial court committed reversible error in permitting the deposition testimony of appellee's treating doctors, Eichler, Villarreal-Rios, and Maniatis. Appellant argues that appellee's failure to supplement his answer to appellant's Interrogatory 21, violated TEX.R.CIV.P. 215(5). 1 We disagree.
Appellant's Interrogatory 21 requested the following information:
21. Please identify anyone whom you have employed to be an expert witness in the trial of this law suit by stating that person's name, address, his field of expertise, and whether you expect to call him as a witness during the trial of this cause, including a summary of the subject matter concerning which he is expected to testify.
Response: None at this time.
It is uncontroverted that this response was never supplemented. However, appellant listed all three doctors in response to appellee's Interrogatory 5, which inquired about appellee's attending doctors. Oral depositions taken of the doctors with appellant in attendance reflected that all parties agreed the depositions could be used in trial as if the witnesses were present and testifying. Appellant also agreed that the depositions of the doctors on written questions could also be used in trial. Further, the medical records of the doctors were properly filed with accompanying affidavits before trial and were admitted without objection. The records reflected similar evidence to the doctor's testimony.
Nothing in the record reflects that the doctors were other than treating doctors for the appellant. Appellant therefore, correctly identified them as his treating doctors in answer to Interrogatory 5, and not as "employed experts" in Interrogatory 21.
Further, even if Interrogatory 21 required supplementation to include the three doctors, the record justifies the trial judge finding good cause to permit admission.
"It must be presumed that the court gave consideration to all the facts and circumstances relating to the [admission of the testimony], and that he found that good cause had been shown." Davis v. Dowlen, 136 S.W.2d 900, 904 ( ).
At the outset of the trial, the trial judge clearly recognized the need for him to find good cause in order to permit the testimony objected to. The record also shows that the trial judge was made aware by appellant of the need for finding good cause in order to permit the testimony of the doctors. It is likewise clear that appellee made the trial judge aware of all the reasons to find good cause. It can very reasonably be inferred the trial judge found good cause when he then overruled appellant's objection.
Appellant's objection was overruled in face of a record which reflected appellee had divulged the names and addresses of the three doctors in response to Interrogatory 5, oral depositions had been taken by both sides with an agreement that they could be used in trial, depositions on written questions had also been taken with the same stipulation, and the medical records of the doctors were properly admitted without objection. The record was clear that appellant was not surprised, and that good cause existed to admit the evidence. Texas Employers' Ins. Assoc. v. Webb, 660 S.W.2d 856, 858 (Tex.App.--Waco 1983, writ ref'd n.r.e.).
Further, if error was committed it was harmless, since appellant permitted the medical record to be admitted without objection because "error in admission of testimony is deemed harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection." Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984).
Appellee's reliance on Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986), Yeldell v. Holiday Hills Retire. & Nursing, 701 S.W.2d 243 (Tex.1985), and Liberty Mutual Fire Ins. Co. v. Gee, 749 S.W.2d 883 (Tex.App.--Texarkana 1988, writ granted), is misplaced.
In Morrow, the Supreme Court held it was not abuse of discretion for the trial judge to exclude the testimony of a witness whose address had not been supplemented by the party who discovered the new address prior to trial where "no showing of good cause was made." The case before us is quite different in that the names and addresses of the doctors were furnished to the appellee, the trial judge admitted the testimony after apparently finding good cause, and the record supports a showing of good cause.
In Yedell, the Supreme Court held it was not abuse of the trial court's discretion to exclude the testimony of a witness whose name had never been disclosed in response to interrogatories inquiring about persons with knowledge of relevant facts, where no showing of good cause was made. The case before us is distinguishable in that the trial court admitted the testimony after apparently finding good cause, the names of the witnesses were disclosed properly in Interrogatory 5 as attending doctors, their depositions were taken with stipulations permitting their testimony during trial, and the record supports a showing of good cause.
In Gee (writ requested), the court of appeals found the trial judge abused its discretion in admitting the testimony of two doctors who were never listed in response to interrogatories inquiring about all persons with any personal knowledge of the injuries and all names of expert witnesses that would be called to trial. In holding the trial court erred, the court noted "[i]n this case Gee never made or attempted to make a showing of good cause." The case before us is distinguishable in that here the witnesses were disclosed properly in Interrogatory 5 as treating doctors, depositions were taken of the witnesses with the stipulations permitting their testimony in trial, the trial judge admitted the testimony after apparently finding good cause, and the record supports a showing of good cause. The point is overruled.
Appellant next complains that the trial judge committed reversible error in admitting the deposition testimony of eyewitness Arturo Garza.
In Interrogatory 13, appellant requested the production of the names of persons who had given statements regarding the accident. Appellee responded "None at this time." However, in response to appellant's Interrogatories 11 and 12, requesting the names of eye witnesses to the accident and the persons having knowledge of any facts relating to the accident, appellee correctly named Arturo Garza and provided his address and telephone number. Although it was disclosed later at the deposition of Arturo Garza that he had in fact given a statement to appellee, Interrogatory 13 was not supplemented. Appellant argues that such a failure required the exclusion of Garza's testimony because there was not an affirmative finding of good cause by the trial judge stated in the record. We disagree.
Initially, we note the record contains the following as the only objection relevant to this issue:
Appellant has failed to direct this Court to the record where the "matter was taken care of beforehand." Further, a search of the record fails to reveal that any motion to produce in this...
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