Smithson v. Cessna Aircraft Co.

Decision Date15 February 1984
Docket NumberNo. C-1344,C-1344
Citation665 S.W.2d 439
PartiesDarla SMITHSON, Individually and as Administratrix, Petitioner, v. CESSNA AIRCRAFT COMPANY, Respondent.
CourtTexas Supreme Court

Edwards & Perry, Russell H. McMains, Corpus Christi, Law Offices of Pat Maloney, Pat Maloney, Sr., Pat Maloney, George LeGrand, and Jack Pasqual, San Antonio, J. Hadley Edgar, Jr., Lubbock, for petitioner.

Graves, Dougherty, Hearon & Moody, Robert J. Hearon, Jr., and John T. Anderson, Austin, for respondent.

SPEARS, Justice.

The opinion and judgment of this Court dated July 13, 1983 are withdrawn and the following opinion is substituted.

Darla Smithson, individually and on behalf of her minor children, brought this wrongful death action against Cessna Aircraft Company ("Cessna") for damages suffered when an airplane crash killed her husband, Benjamin Smithson. The trial court rendered judgment for Mrs. Smithson on a jury verdict of $1,200,000. The court of appeals reversed the trial court's judgment and remanded the cause for a new trial. 632 S.W.2d 375. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

The principal question presented to this court is whether the trial court abused its discretion when it refused to exclude the deposition testimony of an expert witness whose identity was not disclosed in pre-trial interrogatories as required by Tex.R.Civ.P. 168.

Benjamin Smithson and James Parker died in the crash of a Cessna 150 airplane in New Mexico in 1976. At the time of the crash, Smithson was employed as an instructor pilot for Air Plains West, which owned the airplane, and was giving Parker flying lessons.

Darla Smithson, individually and on behalf of her minor children, filed suit for wrongful death against Cessna. 1 She claimed that design and manufacturing defects in the legs of the cockpit seats caused the seats to fail during the crash, proximately causing the death of her husband.

One week before the trial began, Cessna moved the court to take judicial notice of certain laws of New Mexico. The court granted Cessna's motion and ruled that New Mexico law would govern the case. Mrs. Smithson claimed to be surprised by this ruling and responded by changing her theory of damages. 2 She contended that her husband's future earnings would have been greater than previously asserted because he would have changed occupations and become a commercial pilot. She offered the testimony of George Baumann, a Braniff Airlines pilot, as evidence of the qualifications necessary to become a commercial pilot and the earning potential of such a pilot. Cessna asked the court to exclude Baumann's testimony. It claimed that the offer of his testimony was an unfair surprise because Mrs. Smithson had not disclosed to Cessna in pre-trial interrogatories that Baumann would be a witness and would give expert testimony. The court refused to exclude the evidence, but ordered Mrs. Smithson to present Baumann for a Friday afternoon deposition. Pursuant to the court's ruling, Cessna and Mrs. Smithson deposed Baumann.

When the trial resumed the following Monday, Mrs. Smithson did not call Baumann to testify before the jury, but instead offered parts of his deposition testimony into evidence. Cessna again objected, reiterating its earlier claim of unfair surprise, and requested that this evidence be excluded, but the court overruled the objection and allowed Mrs. Smithson to read parts of the deposition to the jury.

Cessna then argued for the right to ask questions and to introduce evidence concerning instances of Mr. Smithson's negligence as a pilot, including his alleged negligence in causing the fatal crash. Cessna contended that Mrs. Smithson had placed her husband's competency as a pilot into issue when she sought to prove he had the qualifications to become a commercial pilot. The trial court ruled,

Now, I can see the problem of getting into the fact he was negligent on this particular flight, but if you have other evidence that he was an incompetent pilot and couldn't have been hired by the airlines, it seems to [me] that is admissible .... What I am going to do is, rule that you can go into anything that bears on his competency or incompetency, except for the crash in question. So you will be precluded from showing he was negligent in the crash of this--that he almost crashed the week before. That is all right.

After this ruling, Cessna represented to the trial court that it could prove through the deposition of an expert witness that Mr. Smithson's negligence caused the fatal crash. Cessna did not, however, read from this deposition or otherwise attempt to make it a part of the record with a formal bill of exceptions. Moreover, Cessna did not offer any evidence to show Mr. Smithson was negligent during previous flights.

After all the evidence was presented, special issues were submitted to the jury, which found that the seats in the Cessna 150 had been defectively designed and manufactured and that the defects proximately caused the deaths of Mr. Parker and Mr. Smithson. The jury set Mrs. Smithson's damages at $1,200,000, and the trial court rendered judgment on the verdict for Mrs. Smithson.

On appeal, Cessna argued that the trial court's refusal to exclude Baumann's deposition testimony was an abuse of discretion. Cessna contended that Mrs. Smithson's failure to identify Baumann in response to pre-trial interrogatories created an unfair surprise that could be mitigated only by exclusion of the evidence. Cessna also argued that the trial court should have accepted the offer of deposition testimony to prove that Mr. Smithson negligently caused the crash. The court of appeals agreed with these arguments. It reversed the judgment of the trial court and remanded the case for a new trial.


Because this suit was tried in 1980, the 1981 amendments to Tex.R.Civ.P. 168 do not apply. 3 Instead, Rule 168 as amended in 1973 is applicable. The 1973 version of Rule 168 requires supplementation of answers to certain interrogatories, including those seeking disclosure of experts who are expected to be called to testify. The rule does not, however, contain a provision specifying a sanction to be imposed for noncompliance with this supplementation requirement. 4 Texas Employer's Insurance Association v. Thomas, 517 S.W.2d 832, 834 (Tex.Civ.App.--San Antonio 1975, writ ref'd n.r.e.). Consequently, the imposition of an appropriate sanction for failure to supplement interrogatories in compliance with the rule is within the broad discretion of the trial court. Texas Employers Insurance Association v. Thomas, supra at 834-35; Trubell v. Patten, 582 S.W.2d 606, 610 (Tex.Civ.App.--Tyler 1979, no writ). The standard for reviewing the trial court's action is whether this discretion was clearly abused. An appellate court should not substitute its judgment for that of the trial court. Werner v. Miller, 579 S.W.2d 455, 456-57 (Tex.1979); Landry v. Travelers Insurance Company, 458 S.W.2d 649, 651 (Tex.1970); Texas Employers Insurance Association v. Thomas, supra at 834. Similarly, a trial court's refusal to impose a particular sanction can be set aside only upon a showing of a clear abuse of discretion. Tenngasco Gas Gathering Company v. Fischer, 624 S.W.2d 301, 303 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.). To establish a clear abuse of discretion, the complaining party must show that the trial court's action was arbitrary or unreasonable in light of all the circumstances of the particular case. Landry v. Travelers Insurance Company, supra; see also Comment, Imposition and Selection of Sanctions in Texas Pretrial Discovery, 31 Baylor L.Rev. 191, 196 (1979).

In this case, Cessna advances three arguments for its position that admission of Baumann's testimony was reversible error. First, it argues that the 1981 addition to Rule 168, providing for exclusion of expert testimony in this situation, was simply a clarification of the existing rule and that such exclusion was therefore an appropriate sanction when this lawsuit was tried. The question before this court, however, is not whether exclusion of Baumann's testimony was an appropriate sanction, but whether imposition of that sanction was mandatory under the circumstances. Clearly the trial court had the discretion to prevent Baumann from giving evidence. See, e.g., Texas Employers' Insurance Association v. Meyer, 620 S.W.2d 179 (Tex.Civ.App.--Waco 1981, no writ). Nevertheless, the court decided not to impose that sanction. The decision must stand unless it was a clear abuse of discretion.

Cessna also argues that even if Mrs. Smithson had called Baumann to testify in front of the jury following his deposition, the applicable Rule 168 would have compelled the trial court to exclude his testimony because of Mrs. Smithson's failure to comply with the requirement for supplementation of interrogatories. Cessna apparently believes that under the 1973 version of Rule 168, nondisclosure of an expert witness until after the trial has begun creates an unfair surprise that can be mitigated only through exclusion of the expert's testimony.

We cannot endorse such an inflexible restriction on the trial court's ability to fulfill its discretionary duties in conducting a fair trial and administering discovery rules. To conclude that there was only one permissible action available to the trial court is virtually to deny the court any discretion in these instances. Smithson may have surprised Cessna when she called an undisclosed expert witness, but the record does not clearly establish that the granting of a continuance or a postponement of the trial would not have sufficiently protected Cessna from any harm due to the surprise. In fact, since the primary basis of Cessna's objection was that the mid-trial disclosure of Baumann did not allow enough time to prepare an adequate defense and to...

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