Westinghouse Elec. Corp. v. Pierce
| Decision Date | 07 July 1954 |
| Docket Number | No. A-4514,A-4514 |
| Citation | 153 Tex. 527,271 S.W.2d 422 |
| Parties | WESTINGHOUSE ELECTRIC CORP. et al. v. PIERCE. |
| Court | Texas Supreme Court |
Vinson, Elkins, Weems & Searls, Thomas B. Wealtherly, B. Jeff Crane, Jr., Fulbright, Crooker, Freeman & Bates, and Malcolm McCorquodale, Houston, for petitioners.
Irving G. Mulitz and Williams, Lee & Kennerly, Houston, for respondent.
By this suit plaintiff-respondent sought damages of Westinghouse Electric Corporation and Leader Electric Company, respondents, and other defendants, for an injury to his eyes alleged to have resulted from the use of a 'sunlamp' manufactured by Westinghouse. A jury trial resulted in a judgment for defendants. The Court of Civil Appeals has reversed and remanded. 263 S.W.2d 810.
In his original petition plaintiff alleged that his eyes were burned by the ultraviolet rays of the lamp 'within five minutes' after he sat on a chair, placed 'about seven (7) or eight (8) feet' in front of the lamp, and began to read a newspaper. In his first amended petition he changed the allegations of distance to 'about four (4) or five (5) feet' and the time to 'about five (5) minutes.' He filed and went to trial on his second amended petition which contained the same time and distance allegations last mentioned.
Plaintiff's deposition was taken after the filing of his original petition and before the filing of his first amended petition and he testified that he was sitting in a chair about four or five feet from the lamp when the injury occurred. No doubt this testimony caused the change in allegations of distance as made in the pleadings. After his first amended petition was filed, his deposition was taken again and by his testimony he confirmed the time and distance features of his case as alleged in his first amended petition and as thereafter again alleged in his second amended petition. He testified on the trial, demonstrated to the jury how he sat in front of the lamp, and again confirmed these features of his case, and produced medical testimony that the exposure of his eyes to the ultraviolet rays at a distance of about four feet for about five minutes could and probably did cause the injury to his eyes.
During cross-examination of one of plaintiff's medical witnesses and in their evidence in chief after plaintiff rested his case, defendants demonstrated to the jury their theory, supported by their expert testimony, that the eyes could not receive an ultraviolet ray burn from the lamp in the manner in which plaintiff testified. They exposed some six different persons before the lamp at a distance of four feet for a period of five minutes and longer without ill effects.
Some fifteen days after the trial had begun and while defendants' expert witness was under cross-examination, plaintiff was asked by his counsel to again demonstrate before the jury the distance and manner in which he had sat before the lamp on the occasion of his claimed injury, whereupon he placed himself in a chair a little over two feet from the lamp. The defendants objected that the tendered proof was at variance with the pleadings and the objection was sustained. Plaintiff then sought to file a trial amendment in which he alleged the distance at which he sat on the occasion of his injury as 'between two and four or five feet' and the time of exposure as 'for a period of several minutes, plaintiff believes that if was about five minutes', and further: 'the exact distance and time not being known exactly to plaintiff but are estimated as well as plaintiff is able to do.' The trial judge denied permission to file the amendment in the face of defendants' objection that it would permit plaintiff to change the theory of his suit after he had seen the entire defense thereto, the judge saying: 'It would be manifestly unfair to let you say now it was two feet instead of four, and I am faced with the proposition that the defense put on six people who sat four feet from it before you offered the trial amendment.'
The Court of Civil Appeals held the trial court's refusal to allow the filing of the trial amendment to be error but not necessarily reversible error. 263 S.W.2d 814. That Court reversed because it concluded the trial court had erred in the manner of submitting special issues. We find it difficult to separate the two problems.
The plaintiff alleged in the pleading on which he went to trial that the defendants were negligent in some eight particulars, all having to do with the failure to give adequate warning of the dangers from the use of the lamp and proper instructions in connection with the use thereof, which omissions, separately and concurrently, proximately caused his injury, and which were summed up and submitted by the trial judge to the jury in two series of issues involving the usual issues of failure to properly warn and instruct, negligence and proximate cause. These issues were submitted, however, conditioned on an affirmative answer to Special Issue No. 1.
Special Issue No. 1 was as follows: 'Do you find from a preponderance of the evidence that the injuries, if any, to the eyes of the plaintiff, Wendell E. Pierce, were directly and proximately caused by plaintiff sitting on a chair, which was located about four or five feet from the electrical apparatus in which had been placed the Westinghouse Flourescent sun lamp, and which had been placed in front of him, and reading a newspaper for a period of about five minutes?' The jury answered 'We do not.' Under the conditioned form of submission the jury did not answer Special Issues 2 and 5 bearing on the failure of defendants to properly warn and instruct and corollary issues 3, 4, 6 and 7 on negligence and proximate cause.
The trial court did not abuse its discretion in refusing to allow plaintiff to file the trial amendment.
Rule 66, Texas Rules of Civil Procedure, provides: 'If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading * * * the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits.' The provision is a salutary one, directed at arriving at the true legal rights of the parties under the true facts, but we cannot hold that the trial court abuses its discretion in denying the right to file a trial amendment when the record discloses a probable resulting prejudice to the opposite party 'in maintaining his action or defense.'
It seems quite clear to us that the trial court was justified in concluding on the record before it that the proffered amendment and testimony supporting it would have prejudiced the defendants in maintaining their defense. Plaintiff's suit was filed on March 27, 1951. Trial of the suit began on November 18, 1952. In the meantime plaintiff gave his testimony by deposition on two occasions. In his last two pleadings and in his testimony in both depositions he definitely fixed the manner in which he was injured by the rays from the lamp. The defendants had a right to assume that the case as made by the pleadings and testimony was the case and the only case they were called upon to defend and to prepare their defense accordingly. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 254; Erisman v. Thompson, 140 Tex. 361, 167 S.W.2d 731, 733; Texas Employers' Ins. Ass'n v. Dillingham, Tex.Civ.App., 262 s,.w,2d 748, writ refused, N.R.E. This they did; and the record reflects that they were prepared with witnesses and experiments to convince the jury that plaintiff could not have sustained an injury in the manner in which he claimed to have sustained it as a basis for his suit. In his testimony on the trial, in making out his case, plaintiff confirmed his previous...
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