Holiday Hills Retirement and Nursing Center, Inc. v. Yeldell, 2-84-138-CV

• Decision Date: 21 March 1985
• Docket Number: No. 2-84-138-CV,2-84-138-CV
• Citation: 686 S.W.2d 770
• Parties: HOLIDAY HILLS RETIREMENT AND NURSING CENTER, INC., Appellant, v. Bertha F. YELDELL, Appellee.
• Court: Texas Court of Appeals

Page 770

686 S.W.2d 770

HOLIDAY HILLS RETIREMENT AND NURSING CENTER, INC., Appellant, v. Bertha F. YELDELL, Appellee.

No. 2-84-138-CV.

Court of Appeals of Texas,

Fort Worth.

March 21, 1985.

Chappell & Handy, P.C. and Michael Handy, Fort Worth, for appellant.

Eakins and Kraft and George C. Johnson, Dallas, Texas for appellee.

Before JORDAN, ASHWORTH and JOE SPURLOCK, II, JJ.

OPINION

JORDAN, Justice.

Bertha F. Yeldell brought suit against Holiday Hills Retirement and Nursing Center, Inc., a non-subscriber to Worker's Compensation, for personal injuries she sustained while employed at Holiday Hills as a charge nurse when a coffee urn overturned, spilling scalding hot coffee over her abdomen and legs. The suit was brought by virtue of TEX.REV.CIV.STAT.ANN. art. 8306, sec. 4 (Vernon 1967), which provides in general that in actions for personal injuries against a non-subscriber to Worker's Compensation, the plaintiff must prove negligence of the employer or an agent or servant of the employer acting within the general scope of his employment. Id. Trial to a jury resulted in a verdict for Yeldell in the amount of $155,134.00. The nursing home appeals on seven points of error.

We reverse and remand.

Appellee, Yeldell, is a licensed vocational nurse, who, on December 23, 1979, was employed by Holiday Hills as a charge nurse. She was responsible for some thirty patients and her duties included giving medications, tending to patients' needs, charting, supervising the nurses' aides, and taking doctors' orders. On that date she was working the 3:00 p.m. to 11:00 p.m. shift and about 7:00 p.m. on that evening was talking to her daughter on the telephone at her nurses' station. The phone, which was for the use of patients and visitors, was placed on a ledge running in front of the nurses' station. Yeldell admitted that the phone call with her daughter was purely personal and had nothing to do with the business or operation of the nursing home. While on the phone, Yeldell asked a nurses' aide to leave the coffee cart in front of the nurses' work station instead of taking it back to the kitchen. On the cart was a large 50-cup coffee urn, which, under the rules of the nursing home, was supposed to remain on the coffee cart at all times. The urn was plugged in through the window at Yeldell's work station.

While standing at her desk, Yeldell finished the conversation with her daughter, and placed the receiver on the phone. She then turned to put the phone back on the ledge, where it belonged, so that it could be used by patients and visitors. Sometime before or during the telephone conversation, the coffee urn had been removed from the cart and placed on the ledge of the window at Yeldell's desk. When Yeldell tried to put the phone back on the ledge, she apparently got the telephone wires and the electric cord for the coffee urn tangled. Consequently, the large urn toppled over, spilling hot coffee all over the front lower part of Yeldell's body. She received second and third degree burns on her abdomen and both legs, which eventually required skin grafts.

Appellant's first complaint regards the trial judge's exclusion of the testimony of one Shirley Scroggins, a dietary aide, who, the parties stipulated, would have testified that Bertha Yeldell herself placed the coffee urn on the ledge. This evidence would have been extremely important to appellant in this case because it would have been some evidence that the conduct of Yeldell was the sole proximate cause of her accident, a finding of which by the jury would have denied recovery to Yeldell.

The testimony of Shirley Scroggins was excluded because appellant's answers to interrogatories inquiring as to the identity of witnesses to the occurrence of December 23, 1979, were not supplemented to include her as a witness. It is undisputed that when the interrogatories were originally answered, neither the nursing home's attorney nor anyone else connected with it knew of the substance of Scroggins' testimony. Shirley Scroggins' name was listed in the original answers to the interrogatory which asked for a list of kitchen and dietary helpers. Moreover, there was testimony that Bertha Yeldell's attorney knew about Scroggins and at one time asked to take her deposition. Appellant's attorney testified, out of the presence of the jury, that he offered the deposition of Scroggins to appellee at any time but the offer was never accepted. Yeldell's attorney did not ask for a continuance before trial or for the opportunity to take Scroggins' deposition during the trial. The trial judge ruled that there was a duty to supplement the answers to the witness interrogatory and excluded the proffered testimony of Shirley Scroggins. In this we think he erred.

Since this case was tried in the week of March 26, 1984, the April, 1984 amendments to the Rules of Civil Procedure, including Rule 168, were not yet in effect. Thus, Rule 168 as it read prior to April 1, 1984, controls the trial judge's action in excluding the testimony of Shirley Scroggins.

Rule 168(7) provided very plainly that "[a] party whose answers to interrogatories were complete when made is under no duty to supplement his answers to include information thereafter acquired." TEX.R.CIV.P. 168(7) (Vernon Supp.1983) (located at 599 S.W.2d, Texas Cases, XLIV, XLIV-XLV). (Emphasis added.) This is the general rule, or was at the time in question, and is the rule which should have been followed here. Rule 168(7) proceeds to require supplementation of answers: (1) if the party answering knows his answer was incorrect when made; (2) if he knows that the answer, though correct when made, is no longer true and the circumstances are such that a failure to amend the answer is in substance a knowing concealment or misrepresentation; or, (3) if the party expects to call an expert witness and he has not revealed the witness's name nor disclosed the subject matter of such witness's testimony in his prior response to an appropriate interrogatory, then his answer must be amended to include the name, address, telephone number of the witness and the substance of his testimony. Id.

Apparently, the trial court felt that the answers to the interrogatory inquiring of witnesses were complete when made but became incomplete because of additional information and that supplementation was therefore required. We note that the section of Rule 168 requiring supplementation refers to answers, not which become incomplete, but which are untrue. See Id. If there were a duty to supplement every time an answer which was complete when made and later became incomplete because of additional information being acquired, the general rule would necessarily be that all answers to interrogatories must be supplemented to include information thereafter acquired. This is just not the rule; the rule is exactly opposite, when it states: "[a] party whose answers to interrogatories were complete when made is under no duty to supplement his answers to include information thereafter acquired." Id.

The source of Texas Rule 168 is Federal Rule 26 and Federal Rule 26(e) is identical in wording to Rule 168(7) except that in addition to requiring supplementation with regard to the identity of expert witnesses, the Federal Rule specifically requires supplementation with regard to the "identity and location of persons having knowledge of any discoverable matter." Compare FED.R.CIV.P. 26 with TEX.R.CIV.P. 168(7) (Vernon Supp.1983) (located at 599 S.W.2d, Texas Cases, XLIV, XLIV-XLV). Texas Rule 168(7) is silent as to any duty to supplement with respect to non-expert witnesses. TEX.R.CIV.P. 168(7) (Vernon Supp.1983) (located at 599 S.W.2d, Texas Case, XLIV, XLIV-XLV).

We hold that the court's interpretation of Rule 168(7) was incorrect, and even if it were not, we think the court abused its discretion in not admitting the testimony of Shirley Scroggins. Her testimony, according to the stipulation of the parties, would have been that appellee herself, Bertha F. Yeldell, put the coffee urn up on the ledge, and this testimony, if admitted and believed by the jury, could have been found to have been the sole proximate cause of the accident and the injuries to Yeldell. Under TEX.REV.CIV.STAT.ANN. art. 8306, sec. 4 (Vernon 1967), in all actions against an employer who is not a subscriber to Worker's Compensation, for a plaintiff to recover it is only necessary for the plaintiff to prove the negligence of his employer or of some agent or servant of his employer acting within the general scope of his employment.

Moreover, in the present case, at the time Scroggins' testimony was proffered and refused by the court, there was no claim of surprise or prejudice by appellee. In fact, as we have previously shown, the existence of this witness was known to appellee and her attorney from the beginning and in fact, appellant's counsel offered Scroggins for deposition long before trial as well as during trial. Appellee did not ask for a continuance to either depose Scroggins or otherwise prepare to meet her testimony.

For the reasons stated, we hold that there was no duty on the part of appellant to supplement his answers regarding non-expert witnesses, and furthermore, if there was such a duty, the trial court, in this particular instance, abused its discretion in refusing the proffered testimony of Shirley Scroggins. See Murphy v. Magnolia Electric Power Ass'n, 639 F.2d 232, 234-35 (5th Cir.1981).

Appellant's first point of error is sustained.

Holiday Hills next maintains that it was error for the trial judge to hold as a matter of law that Bertha Yeldell was at the time of her injury on her employer's premises acting in the course and scope of her employment. Appellant insists that the question of course and scope of employment should have been submitted to the jury. This was a fact question because at the precise time of Yeldell's accident she had deviated from the course and scope of...