Texas Employers Ins. Ass'n v. Thomas

• Decision Date: 11 December 1974
• Docket Number: No. 15351,15351
• Citation: 517 S.W.2d 832
• Parties: TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Dennis H. THOMAS, Appellee.
• Court: Texas Court of Appeals

Page 832

517 S.W.2d 832

TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Dennis H. THOMAS, Appellee.

No. 15351.

Court of Civil Appeals of Texas San Antonio.

Dec. 11, 1974.

Rehearing Denied Jan. 8, 1975.

Groce, Locke & Hebdon, Thomas H. Crofts, Jr., Joseph L. Segrato, San Antonio, for appellant.

Broadus A. Spivey, Austin, for appellee.

BARROW, Chief Justice.

Appellant has perfected its appeal from a judgment entered on a jury verdict whereby appellee recovered workmen's compensation benefits for a period of 401 weeks at the rate of $49.00 per week. The jury found that appellee received an injury on or about April 8, 1971, in the course of his employment for the H. B. Zachry Company, which was the producing cause of total and permanent incapacity.

Appellant complains of this judgment and specifically of the order overruling its amended motion for new trial by seventeen assignments of error. The first five points urge that the trial court erred in not granting appellant's motions to withdraw its announcement of ready and to grant a mistrial because of appellee's failure to supplement written interrogatories so as to timely advise appellant that Dr. A. E. Minyard would give expert medical testimony on behalf of appellee.

This suit was filed by appellant on February 6, 1973, to set aside the final award of the Industrial Accident Board (Board) entered on January 9, 1973. A cross-action was filed by appellee seeking benefits for total and permanent incapacity. By agreement the parties were realigned so that appellee became plaintiff and appellant became defendant, and they will be hereinafter referred to in this manner. On July 20, 1973, defendant served extensive written interrogatories upon plaintiff including the following interrogatories:

'12. List the names and addresses of all doctors seen by you for any reason whatsoever during the past ten years, . . ..

34. Have you (or anyone in your behalf) employed anyone to be an expert witness in the trial of this suit? If so, please state: . . . name. . . .'

In response to Interrogatory No. 12, plaintiff named three doctors, but not Dr. Minyard. In response to Interrogatory No. 34, he answered 'no.' This response was sworn to on July 30, 1973, and filed on August 8, 1973. Insofar as Dr. Minyard is concerned, these answers were then true and correct in that he did not examine plaintiff until October 22, 1973.

An amendment to Rule 168, ¹ effective February 1, 1973, requires a party to supplement his answers under certain circumstances to include information acquired after the answers were made. ² There is no specific remedy or penalty in the rule for failure to supplement one's answer. The trial court is authorized to assess certain penalties for the refusal to answer an interrogatory, but the authorized penalty of assessment of reasonable expenses or a finding of contempt of court would be inappropriate in most instances where, as here, the name of an expert witness was not given so as to permit discovery proceedings of his testimony.

The case went to trial on November 5, 1973. On the second day of the trial, Dr. Minyard was called as a witness by plaintiff. Defendant promptly filed its motion to withdraw its announcement of ready and for a mistrial or, in the alternative, that Dr. Minyard not be permitted to testify. The motion for a mistrial was reurged at the conclusion of his testimony and defendant also sought to strike the testimony. Defendant urged in the trial court as a basis for said motion a claim of surprise based on a misrepresentation by plaintiff's attorney rather than a failure to comply with Rule 168. The case was originally set for trial around the middle of October, 1973. At this time, plaintiff's lead counsel was in trial of a case in another city. Therefore, this case was passed and reset by agreement of the attorneys and approval of the trial court. In the discussion between the attorneys leading up to the agreement to pass the case, plaintiff's attorney assured defendant's attorney that he would not use the additional time to bring in a professional medical witness such as Dr. W . R . Plaintiff's attorney advised defendant's attorney at that time that he did not plan to use an expert witness and that he usually relied on lay witnesses in the trial of compensation cases.

Although this agreement was the thrust of defendant's motion for mistrial, it does not now assert same and the oral agreement has no relevance here except as it bears on the question of surprise. See Rule 11, Tex.R.Civ.P. (1967). Nor does defendant charge plaintiff's attorney with bad faith. Plaintiff's attorney is frank to admit that he was not aware of the change in Rule 168, which requires the supplementing of answers. See Coca Cola Bottling Co. v. Mitchell, 423 S.W.2d 413 (Tex.Civ.App.--Corpus Christi 1967, no writ); Sales, Discovery Under the Texas Rules of Civil Procedure, 37 Tex.Bar Journal, 39, 44.

While the interrogatories when considered as a whole are very broad, plaintiff admittedly should have supplemented his answer to Interrogatory No. 34 after he was examined by Dr. Minyard on October 22nd, for the sole purpose of the possible use of Dr. Minyard as an expert witness. Since there is no express sanction provided by the rule for failure to supplement this interrogatory, the question before us is whether the trial court abused its discretion in not granting a mistrial and in permitting Dr. Minyard to testify. Ebeling v. Gawlik, 487 S.W.2d 187 (Tex.Civ.App.--Houston (1st Dist.) 1972, no writ); Hankins v. Haffa, 469 S.W.2d 733 (Tex.Civ.App.--Amarillo 1971, no writ); Fisher v. Continental Illinois National Bank & Trust Company of Chicago, 424 S .W.2d 664 (Tex.Civ.App.--Houston (14th Dist.) 1968, writ ref'd n.r.e.).

We conclude after careful examination of this record that the trial court did not abuse its discretion in refusing to grant a mistrial. It is seen that the medical evidence in this case was very fully developed in discovery proceedings. Plaintiff had been under the care and treatment of two doctors approved by defendant, and defendant was fully aware of plaintiff's physical condition. Dr . Minyard, who saw plaintiff on only one occasion, did not bring any new medical evidence into the case. He simply drew a different conclusion from the results achieved by the treating physicians. Dr . Stool and Dr. Robinson, who had each performed surgery on plaintiff's collarbone as a result of his injury, testified that plaintiff had sustained a permanent partial incapacity of ten percent and twenty-five percent respectively. On the other hand, Dr . Minyard testified that, in his opinion, plaintiff was totally incapacitated as defined by the compensation law. There was little conflict in the findings of the doctors; each just reached a different conclusion from such findings.

Defendant urged to the trial court, and on this appeal, that it was deprived of the valuable right to take the oral deposition of Dr . Minyard. We doubt that it would have had time to take said deposition between the examination on October 22nd and the trial setting. In any event, defendant does not point out now how a deposition would have changed defendant's position. We cannot say that this denial was such as to require a mistrial. The trial court did excuse the jury and give defendant's attorney all the time that he desired to make a background check on Dr. Minyard prior to cross-examination. Defendant did not point out at the trial court, or to us, any new medical evidence brought into the case by the testimony of Dr. Minyard. Defendant did not request another physical examination of the plaintiff. Defendant's first five points are overruled.

Defendant urges by his assignments of error Nos. six through ten that there is no evidence or insufficient evidence to support the jury findings that plaintiff was totally and permanently incapacitated after April 8, 1971. The thrust of the argument under these points is that the evidence is uncontradicted that, with the exception of short periods of time following the two operations on his shoulder, plaintiff has been gainfully employed substantially all the time. It is also urged that the injury was confined to plaintiff's left arm.

Plaintiff was a welder for Zachry. He sustained an injury to his left shoulder when he slipped while carrying a heavy bottle of argon . He promptly reported the injury to his foreman and was sent to the company doctor. The company doctor did not testify. On July 6, 1971, Dr. Newsom Stool, an orthopedic specialist, examined plaintiff, and on July 23rd he performed surgery to remove about one-half inch of plaintiff's left collarbone. Dr. Stool testified on behalf of defendant that the injury had resulted in a ten percent permanent partial impairment of the shoulder including the clavicle and scapula. On June 16, 1972, plaintiff was examined by Dr. C. A. Robinson, another orthopedic specialist, and on June 22, 1972, Dr. Robinson surgically removed more of plaintiff's left collarbone. Dr . Robinson testified on behalf of defendant that, in his opinion, plaintiff had sustained a twenty-five percent permanent partial disability of the left upper extremity of the body. Plaintiff's permanent disability is largely...