Lucas v. Titus County Hosp. District/Titus Memorial Hosp.

• Decision Date: 21 January 1998
• Docket Number: No. 06-96-00069-CV,06-96-00069-CV
• Citation: 964 S.W.2d 144
• Parties: James LUCAS and Marilyn Lucas, Appellants, v. TITUS COUNTY HOSPITAL DISTRICT/TITUS COUNTY MEMORIAL HOSPITAL, Appellees.
• Court: Texas Court of Appeals

Page 144

964 S.W.2d 144

James LUCAS and Marilyn Lucas, Appellants, v. TITUS COUNTY HOSPITAL DISTRICT/TITUS COUNTY MEMORIAL HOSPITAL, Appellees.

No. 06-96-00069-CV.

Court of Appeals of Texas Texarkana.

Jan. 21, 1998.

Opinion OverrulingRehearing March 13, 1998.

James and Marilyn Lucas, Mount Pleasant, pro se.

Charles W. Blount, III, Dowd & Blount, Dallas, for Appellants.

Michael Ace, Nancy M. Fuller, Brown McCarroll & Oaks Hartline, Longview, for Appellees.

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

OPINION

GRANT, Justice.

James Lucas and his wife, Marilyn, appeal a take-nothing jury verdict in favor of Titus County Hospital District/Titus County Memorial Hospital. The Lucases sued the Hospital for negligence because it failed to properly maintain a waiting room reclining chair, which caused it to turn over when James attempted to sit in it, thereby causing him to suffer neck and back injuries.

In twenty points of error, the Lucases assert that (1) the trial court erred in refusing their motion to strike and in overruling their motion for mistrial, thereby allowing the testimony of Roy Mac Rosewell, William Carlisle, and Francis Stanbridge over objections that the Hospital had failed to supplement discovery with the witnesses' new area of knowledge, (2) there was a factual insufficiency to support the jury's finding that the Hospital was not negligent and that finding was against the overwhelming weight of the evidence, (3) there was a factual insufficiency to support the jury's finding that both James Lucas and Marilyn Lucas suffered no damage, and that finding was against the overwhelming weight of the evidence, (4) the amount of damages found by the jury to have been sustained by James and Marilyn was inadequate, (5) the court erred in refusing the Lucases' requested special issue, and instead submitted a question to the jury that required a finding of premises liability, (6) the court erred in submitting a question to the jury that was misleading, (7) the court erred in refusing the Lucases' requested special charge to the jury, and (8) the court erred in refusing to strike a juror for cause.

On September 18, 1991, James and Marilyn, along with their friend, Doris Rice, went to the Hospital to visit Marilyn's father. While waiting to see him, James sat and began to lean back in a reclining chair in the waiting room when the chair flipped over, causing him to strike his head and neck against the wall and floor. The Hospital's doctor immediately examined James and determined that he was not seriously hurt. Days later, James consulted his private doctor and subsequently underwent surgery, incurring medical costs exceeding $23,000 and lost wages of $18,000. The Lucases filed this suit on November 16, 1992.

Immediately after James fell, Rosewell, the hospital's maintenance supervisor, and Carlisle, the hospital's carpenter and security guard, inspected the recliner and found nothing wrong with the chair. The men removed the chair and stored it in the Hospital Annex. Three months later, at the Hospital's request, mechanical engineer Robert Krafft inspected the chair and found no defects. He photographed the recliner and drafted a report of his findings, all of which were furnished to the Lucases. During the hospital's expansion in either late 1992 or early 1993, the chair was moved to the maintenance tunnel. In 1994, when Rosewell removed the chair from the maintenance tunnel so that Larry Smith, the Lucases' expert witness, could inspect it for the first time, Rosewell discovered that the chair's lever arm was broken. Rosewell testified at trial that he had overheard plumbers say they broke the chair during the hospital's expansion when they stood on the recliner's lever and arm to reach an overhead pipe.

FAILURE TO SUPPLEMENT DEPOSITION AND INTERROGATORIES

The Lucases complain that because the Hospital failed to supplement interrogatories ^{1 1} notifying them of additional persons with knowledge of relevant facts, namely the plumbers, and because the Hospital failed to supplement deposition testimony notifying them that the prior deposition testimony of Rosewell and Standridge, the Hospital's representative, was wrong and misleading, ² it was error for the court to overrule their Motion to Strike and Motion for Mistrial. Approximately eighteen months after interrogatories were answered, depositions were taken in which Rosewell and Standridge stated that the chair was in the same condition on the day of the deposition as it had been on the day of James's fall. However, three months after these depositions were taken, but shortly before the Lucases' expert witness, Smith, was to examine the chair, Rosewell discovered that the lever on the chair was broken. At trial, over the Lucases' objection, Rosewell and Standridge testified to the chair's changed condition. Because of this new testimony at trial, which was introduced after Smith testified, basing his opinion solely on the chair's broken condition, the Lucases contend that they were prevented from properly evaluating the evidence and presenting their case.

Initially, we concluded that the Lucases had waived any right to complain because they had not brought this matter up at a pretrial hearing pursuant to Remington Arms Co. v. Caldwell. ³ The Remington Arms case was a case in which the pleadings of the party were stricken as a sanction. The court in the Remington Arms case provides that the trial court has the power during the trial to exercise other sanctions. In the present case, we have carefully studied the record and find that the Titus County Hospital District and the Titus County Memorial Hospital did not raise the matter of waiver at trial or on appeal. Furthermore, because of the specific language of the rule on failure to supplement and the cases thereon, the matter of waiver may not be applicable to this specific discovery matter. We decline, therefore, to address this case on the basis of waiver, but rather address it specifically on the rule in point and the applicable cases on that rule.

First, the Hospital contends that the Lucases have not perfected error for appeal because they did not introduce the three depositions into the record or offer them as bills of exception. Therefore, there is no basis for review upon which this Court can compare in determining whether the deposition testimony conflicts with the testimony at trial, ⁴ thereby triggering the issue of whether supplemental discovery was necessary. However, Standridge and Rosewell testified at trial that their deposition testimony of the chair's condition differed from that of their trial testimony regarding the same. This testimony is sufficient evidence upon which to make a comparison, and therefore a basis for review exists.

Second, the Hospital asserts that error was not preserved when the Lucases objected to Standridge's testimony because (1) the Lucases failed to make a timely request, objection, or motion stating the specific objection, and (2) the Lucases failed to obtain a ruling. ⁵

Rule 103 of the Rules of Civil Evidence requires a timely objection to preserve error on the admission of evidence. We have studied the context of the objection made to the evidence in question. Although no objection was made at the first mention that the chair had been broken, neither the questions nor the responses made prior to the objection indicated that the witness was taking the position that the chair was broken during the time it was in storage. Until a question or answer clearly shows that the evidence is improper, counsel has not waived his right to object when impropriety and the question or answer affects the admissibility. The basic conflict about which the Lucases complain was that their expert had based his opinion that the condition of the chair was the same as it was at the time it was placed in storage. These preliminary questions and answers did not inform the jury that the witness was not taking the position that the broken condition was caused by other parties after the accident.

In the present case, Blount, the Lucases' attorney, told the court at trial that he was "not told this was going to come up until about two weeks or a week before the trial." Although the Hospital did not supplement discovery in writing to reflect the changed testimony and was subject to discovery sanctions because it did not show good cause for failure to supplement, ⁶ the record shows that the Lucases' attorney was aware of the chair's changed condition up to two weeks before trial. ⁷

The Hospital's attorney also told the court, "I have no duty to supplement a deposition, Your Honor. There's notes in my file where I told Mr. Blount in July '94, before his expert came in, that the chair had been broken."

Counsel for the Lucases stated that nobody had notified the plaintiffs, and the matter about the chair being broken by third parties was a whole new line of inquiry.

Again, counsel for the Hospital stated, "Your Honor, as an officer of the court I will tell you that I advised Mr. Blount in July '94 that that chair had been broken before his expert ever went out there."

Counsel for the Lucases immediately took a contrary position stating, "And I take no pleasure in this, Your Honor, but as an officer of this court I will tell you that I received no such notice."

First, we must examine to see if a general statement made by one counsel to another constitutes a supplementation of discovery. We find that it does not. A written supplementation should be filed in the same form as the answers to the original interrogatory. This avoids disputes as to what was said by whom in some type of oral statement made by one attorney to the other. ⁸ We conclude that there was no supplementation made in this case. Once the trial court determines that a party has failed to supplement as required, the evidence must be excluded unless the trial court finds good cause. ⁹

The Hospital takes...