Wiley v. Browning
| Decision Date | 19 April 1984 |
| Docket Number | No. 12-82-0063-CV,12-82-0063-CV |
| Parties | C.B. WILEY and Pam Wiley, Appellants, v. Debbie Jean BROWNING, et vir., John Darren Browning, Appellees. |
| Court | Texas Court of Appeals |
Billy D. Hullum, Willspoint, for appellants.
Dean White, Canton, for appellees.
Debbie Jean Browning and John Darren Browning (plaintiffs/appellees) brought this suit against C.B. Wiley and Pam Wiley (defendants/appellants) seeking to recover personal injury and property damages sustained as a result of an automobile collision. Appellants answered with special exceptions and a general denial. Trial was to a jury. Based on the jury's verdict the trial court rendered judgment in favor of the appellees and set the amount of recovery at $6,892.00. From that judgment appellants have appealed. We affirm.
On April 7, 1979, the Brownings, with John Darren Browning driving, were traveling east in their 1974 Monte Carlo Chevrolet on Highway 243 in Van Zandt County, Texas. Appellant Pam Wiley was driving a Chevrolet Luv pickup in a southerly direction on a county road which intersected with Highway 243. The collision in question occurred when Pam Wiley proceeded to cross Highway 243 and collided with the Browning vehicle in the intersection. Appellee Debbie Jean Browning sustained injuries to her foot, and Pam Wiley sustained injuries to her head. Both automobiles were damaged. At the time of the accident Pam Wiley was a minor, 15 years of age, and did not have a Texas operator's license. Her father, appellant C.B. Wiley, knew that Pam Wiley was not a licensed Texas driver and that she was driving the pickup at the time and on the occasion in question.
Appellants bring six points of error. In their first point, appellants assert that the trial court abused its discretion in applying discovery sanctions "by granting a judgment as to liability against Defendant C.B. Wiley for actions by his daughter, Pam Wiley."
The record reflects that notice was given, pursuant to Rule 201, 1 for the taking of C.B. Wiley's oral deposition at 4:00 p.m. on April 27, 1981, at the 87th District Courtroom in Canton, Texas; that Mr. Wiley failed to appear for such deposition; that he did not notify appellees that he would not be present and did not offer to appear at a later date for his deposition.
On January 19, 1982, the court, as a part of pretrial, held a hearing on appellees' motion for sanctions; at that hearing Mr. Wiley testified in part as follows:
Q Do you recall why you did not appear for that deposition?
A Yes, sir. My wife was going. My wife was there instead of me. I was picking up cattle off the highway. We had a bunch of cattle that had gotten out.
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Q Did you ask your lawyer or anybody to attempt to reschedule the deposition?
A. No, sir. I just sent my wife instead of me.
Q Is it your testimony that you did not notify Mr. White [appellees' counsel], or have your attorney notify Mr. White, or make any further arrangements to set up an alternate date for the deposition?
A Your Honor, I let my wife handle all the business she could, and I didn't want to be bothered with it.
The record further reflects that prior to the deposition setting on April 27, 1981, several dates, informally agreed upon at appellees' request, had failed to result in the taking of such deposition. At the conclusion of the hearing on appellees' motion for sanctions, the trial court granted said motion and, in applying sanctions, defaulted the defendant C.B. Wiley as to liability for the actions of his daughter Pam Wiley in this cause; and that following such ruling on the motion for sanctions, the court, with all parties and counsel present, proceeded with a jury trial to determine the issues as to Pam Wiley's alleged negligence and the personal injury and property damage issues in the case.
Appellants contend that sanctions may not be imposed for failure to appear for an oral deposition "until the order to answer has been made and disobeyed," citing Henson v. Citizens Bank of Irving, 549 S.W.2d 446 (Tex.Civ.App.--Eastland 1977, no writ). That case is clearly distinguishable from the case at bar. In Henson, the court held that where a plaintiff appears for his deposition but refuses to answer several specific questions asserting the Fifth Amendment, the court erred in dismissing plaintiff's suit without first entering an order directing plaintiff to answer the questions. In the case at bar, the defendant C.B. Wiley wholly failed to appear for his deposition and answer any questions.
In Lewis v. Illinois Employers Ins. Co., 590 S.W.2d 119 (Tex.1979), the Supreme Court laid down the standard to be followed in applying sanctions to a party's failure to answer written interrogatories, distinguishing between a situation in which no answers are filed and a situation in which some answers are filed. If some answers are filed, an order compelling the remaining answers is necessary. If no answers are filed, the complaining party may move for the imposition of sanctions without a prior order compelling answers.
The imposition of penalties or sanctions for failure or refusal of a party to comply with discovery rules being directed to the sound discretion of the trial court, such action can be set aside only upon a showing of clear abuse of discretion. Bass v. Duffey, 620 S.W.2d 847, 849 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ).
On the record before us, we conclude that an order compelling attendance prior to imposition of sanctions was not necessary in the instant case and that the trial court did not abuse its discretion in defaulting the defendant C.B. Wiley as to liability for the actions of Pam Wiley, leaving him the right to be present and participate in the trial of the damage issues. Appellants' first point is overruled.
In their second point of error, appellants assert that the trial court erred in allowing medical expenses because there was no proof tendered which showed said expenses were reasonable and necessary. It is well settled that there must be evidence which shows the charges for medical expenses are reasonable in amount and reasonably necessary for the injuries sustained. Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956); 28 Tex.Jur. 3rd Damages § 322. The record herein shows that there was testimony from Dr. John S. Turner, a doctor of...
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