Williams v. Union Carbide Corp.

• Decision Date: 21 May 1987
• Docket Number: No. 01-86-607-CV,01-86-607-CV
• Citation: 734 S.W.2d 699
• Parties: Charles D. WILLIAMS, Appellant, v. UNION CARBIDE CORPORATION, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 699

734 S.W.2d 699

Charles D. WILLIAMS, Appellant, v. UNION CARBIDE CORPORATION, Appellee.

No. 01-86-607-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

May 21, 1987.

Rehearing Denied July 23, 1987.

William G. Neumann, Jr., Krist, Gunn, Weller, Neumann & Morrison, Houston, for appellant.

Kay L. Burkhalter, Baker & Botts, Rick Gibson, Baker & Botts, Houston, for appellee.

Before SMITH, COHEN and DUGGAN, JJ.

OPINION

DUGGAN, Justice.

Based on a jury verdict, the trial court entered a take-nothing judgment in a premises liability suit. Appellant, Charles D. Williams ("Williams"), was an employee of Bechtel Corporation ("Bechtel"), a contractor doing repairs at a plant operated by the appellee, Union Carbide Corporation ("Union Carbide").

Williams was injured when the sheet of grating on which he was standing collapsed after his co-worker, a fellow Bechtel employee, removed the adjacent sheet of grating. The grating on which Williams was standing was supported, in part, by a piece of angle iron that was welded to the bottom of the adjacent grate.

Williams sued Union Carbide for personal injuries sustained from his fall. He contended that Union Carbide was negligent in failing to properly support the grating that collapsed, in failing to properly inspect the grating, and in failing to warn him of the dangerous condition that was created by the improperly supported grating.

Union Carbide denied that the grates were improperly supported and claimed that Williams was negligent by failing to reasonably inspect the grates in question before attempting to remove them.

The jury returned affirmative findings of negligence and proximate cause against both Williams and Union Carbide, found Williams to be 64% negligent and Union Carbide to be 36% negligent, and assessed damages in favor of Williams against Union Carbide in the amount of $84,000. Based on the negligence apportionment, the trial court entered a take-nothing judgment in favor of Union Carbide. Tex.Civ.Prac. & Rem.Code Ann. sec. 33.001 (Vernon 1986).

By his first and second points of error, Williams asserts that the trial court abused its discretion in allowing the testimony of John Payne, Bechtel's employee, who, at the time of the accident, was a construction superintendent on another project for Bechtel at Union Carbide. He later worked as a site manager and finally as a safety director for Bechtel at Union Carbide.

Williams' interrogatories requested the names of all expert witnesses to be called at trial. Union Carbide did not list Payne's name in its initial response, nor did it supplement its responses prior to trial. ¹ Williams contends that exclusion of Payne's testimony was mandatory under Tex.R.Civ.P. 166b and 215(5), because Union Carbide failed to establish good cause sufficient to require its admission.

Tex.R.Civ.P. 215(5) provides that:

A party who fails to supplement seasonably his response to a request for discovery in accordance with paragraph five of Rule 166b shall not be entitled to present evidence which the party was under a duty to provide in a supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter when the information required by Rule 166b concerning the witness has not been disclosed, unless the trial court finds that good cause sufficient to require admission exists.

Failure to supplement automatically results in the loss of the opportunity to present the witness' testimony, Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986), unless the trial court finds good cause that requires admission of the testimony. An evidentiary finding of good cause is the only basis for allowing the testimony to be presented. Id. at 298; Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243 (Tex.1985).

In the instant case, Payne's testimony should have been excluded unless Union Carbide showed, and the trial court found, good cause sufficient to compel its admission. Walsh v. Mullane, 725 S.W.2d 263 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.).

Here, as in Walsh, the trial court overruled appellant's objection and allowed the testimony on the basis that Union Carbide's attorney did not know of Payne's knowledge of the type of grating in issue until two days before counsel offered his testimony. We adhere to our holding in Walsh that this is insufficient to establish good cause, because it is the party's burden, not the attorney's, to answer the interrogatories and to supplement them as discovery unfolds. Id. at 264; Tex.R.Civ.P. 168. While the attorney may not have known of Payne's knowledge, Union Carbide knew of Payne's existence and of his expertise in construction matters for well over two years prior to trial. During that time period, Payne was employed by Bechtel at Union Carbide in various managerial capacities, and had gathered evidence for the trial at Union Carbide's request.

Thus, the record shows that Union Carbide knew or should have known of Payne's potential as an expert witness. It cannot now claim want of knowledge as the basis for allowing his testimony.

We also reject Union Carbide's contention that the error was harmless because the testimony was cumulative. Brewer v. Isom, 704 S.W.2d 911 (Tex.App.--Dallas 1986, no writ). Although another witness testified that he had seen similar grating used at other locations in the Union Carbide plant and at the Amoco plant in the Texas City area, he did not testify to a similar practice in the industry generally. No other evidence of the custom, standard, and practice throughout the industry was presented, except Payne's testimony. Moreover, Payne was a surprise witness who testified on the most controverted issue in the case. His testimony was presented late in the trial, after Williams had presented his evidence and rested his case.

We overrule Union Carbide's contention that such error is harmless because appellant failed to seek a continuance, or an opportunity to depose the witness, or time to locate additional witnesses. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439 (Tex.1984), on which Union Carbide relies was decided under versions of rules 166 and 215 that have been repealed. Both Morrow, 714 S.W.2d at 297, and Walsh, 725 S.W.2d at 263, clearly hold (a) that the exclusion of the testimony of an undisclosed witness is automatic unless good cause is shown, and (b) that there is no need for the opponent to seek a continuance or other relief from the trial court.

Union Carbide also argues that any error was harmless in that the jury knew that Payne was a paid and interested witness because his salary and job depended on his employer's client, Union Carbide, and that the jury was aware of this, thereby decreasing his stature and the emphasis to be given to his testimony. Williams, on the other hand, argues that Payne's positions, first as construction superintendent, then as site manager, and finally as safety director for Bechtel at Union Carbide, increased his stature in the jury's eyes. Further, Williams argues, the fact that Payne worked for Williams' own employer in managerial capacities--but testified on behalf of Union Carbide--must have been damaging to Williams' cause.

We hold that the trial court erred in allowing Payne's testimony, and that error was reasonably calculated to and probably did result in the rendition of an improper judgment. Williams' first and second points of error are sustained.

Because the cause is remanded for new trial, we consider Williams' third and fourth points of error, in which he asserts that the trial court erred in admitting evidence of his employer's negligence. He argues that such evidence was immaterial and irrelevant, or in the alternative, that its probative value was substantially outweighed by the dangers of confusion of the issues, misleading of the jury, and unfair prejudice.

Williams contends that evidence of the employer's negligence may not be considered in a third-party negligence action brought by an employee arising out of an accidental injury covered by worker's compensation insurance. He cites Varela v. Am. Petrofina Co. of Texas, Inc., 658 S.W.2d 561 (Tex.1983), as his authority.

Varela was an action brought by an employee arising out of an accidental injury covered by worker's compensation insurance. The court held that an employer's negligence could not be considered in a third-par...