Missouri-Kansas-Texas Railroad v. Alvarez

POWERS, Before EARL W. SMITH and CARROLL, JJ.

CARROLL, Justice.

Guadalupe successfully C. Alvarez brought against suit Missouri-Kansas-Tex- (MKT) Company as Railroad personal injuries. appeal, On this Court reversed judgment and remanded the cause for trial, holding new wording spe- that the cial issue number one imper- constituted an weight missible comment evidence. Missouri-Kansas-Texas Rail- Alvarez, Company road v. S.W.2d 338 (Tex.App.1984). Supreme Court re- July 27, set for versed our case was and remanded granted July 1982. the trial court us for On consideration remain- which, among other motion in limine ing points of urged by error MKT. Alva- evidence, questions, things, prohibited rez Missouri-Kansas-Texas Railroad concerning that Gua- the fact comments Company, (Tex.1985). 683 S.W.2d 375 We Alvarez, and/or dalupe Antonio Ledesma the judgment will affirm of the trial court. anything alcoholic to Tijerina had Antonio urges points MKT seventeen of error. day of without drink on the the accident one, points three, Under two and MKT obtaining permission of the trial first argues that the evidence a established as court. negligent law it in matter of that was not trial, requested day On of MKT leave of application points its the brakes. These alleging trial of court to file a amendment by rejected this Court our earlier were ordinary had failed to exercise Alvarez are opinion and overruled without further exiting the Unlike care in automobile. five six discussion. Points of error and allegations contributory previous MKT’s of perceived impermissible com- attack the challenged negligence, the trial amendment weight set ment of evidence Alvarez’s conduct he discovered his after special one and have forth issue number dangerous previ- MKT’s situation. All of by Supreme now been overruled Court. contributory negligence allegations ous of error, MKT remaining points In its of placed con- in issue Alvarez’s antecedent contends the trial court should have (1) negligent he ac- duct—whether was intoxication; evidence allowed of should cepting untrustworthy an driv- a ride with plead- have allowed MKT to amend its trial er; (2) stu- placing himself in an alcoholic ings; erroneously excluded testimo- himself; por protect so he could finally, ny; and there no was evidence (3) failing keep proper and a look-out. support pertaining the jury’s verdict allegations upon Each turns of these damages. ordinary used care in fail- whether Alvarez pos- ing guard against appreciate danger. sibility of EVIDENCE OF INTOXICATION—AMENDMENT trial proffered amendment would

OF PLEADINGS placed distinctly have in issue a different negligence— opposite and of theory even history 1. Procedural the case. The of negligent in his reac- whether Alvarez was dispute parties between the arose of a out danger actually he tion to a discovered. 26, train-automobile collision on December surprise, and the trial Alvarez claimed was filed in 1975. Suit first federal court amend- proposed court refused to allow the and later removed to state court. MKT sought unsuccessfully ment. MKT later original in state filed answer court file trial five similar amendments. answer, MKT April 1978. In this specific acts of charged Alvarez three evidence, with At of MKT submitted the close contributory negligence: accepting a ride asking special issue whether untrustworthy known to an ordinary one be with failed to use care driver; placing himself such alcoholic removing himself from the and automobile appropriate take stupor that could not path of the train. trial court refused himself; protect failing along actions to submit the issue proper keep look-out. certain issues and instructions. associated years passed Almost four before Evidence 2. Intoxication. of original first Intoxication, itself, filed its amended answer. in and of does not con alleged This amended answer addi- negligence, certain stitute of intoxi evidence defenses, evidentiary tional affirmative but made cation is an fact change allegations in the contributory by the trier of in determin considered fact negligence. ing person guilty or not a whether contributory negligence. some act Be ordinary use in the care actions he took Wilson, noit discovering oncoming 150 Tex. train. The after prior allegations contributory negligence solely theory were based that Alvarez up The trial question court took appreciate against guard failed presence of intoxication outside the danger possibility jury and determined that there was ride, accepting by becoming source— intoxicated, slight evidence of intoxication while failing keep proper prejudicial great. risk of harm was Under proposed look-out. Under the trial amend- case, facts this hold we that the ments, the contributory negligence issue of court excluded evidence of intoxi quite instead on turned differ- cation probative since its value sub involving ent panic matters —matters reac- outweighed by stantially danger of un care; by persons tion millise- fair prejudice. Ray, Texas of Evi Law of timing; conds in difference and Alva- dence, (3rd 1980); 1481 at 167 ed. Tex.R. § age, physical abilities, rez’s condition and (Supp.1985). points Evid.Ann. 403 MKT’s they upon capac- as would bear his reaction of error eleven and are twelve overruled. ity. allegations These require new would pleadings. 3. Amendment The sev- of quite new and preparation by different trial enth, eighth, points ninth and tenth of er- lawyers they Alvarez’s if were meet to the ror the attack trial court’s refusal allow to negligence theory. new changing theory trial amendment MKT’s Surprise only is the basis for contributory negligence, of and the result- denying trial amendment in this case. ing requested to special refusal allow is- question diligence part of on of the newly sues and instructions based party offering the trial amendment should alleged by failure ordi- exercise by Westing also be addressed the court. nary in care the automobile. These Corp. Pierce, house Electric v. 153 Tex. points of error turn aon determination of (1954); 271 S.W.2d 422 Sanchez whether trial court abused its discre- Matthews, (Tex.App.1982, 636 S.W.2d 455 refusing tion in trial allow n.r.e.). procedural ref’d In view writ amendments. above, history of this case set forth may The trial pleadings court allow pro trial court’s refusal allow MKT's during if has be amended trial an issue posed may justified trial amendments be by consent, been tried the amendment surprise on both on basis of preserve presentation will of the merits diligence of lack by basis MKT. The objecting party the action and the fails seventh, eighth, points ninth and tenth satisfy court that the allowance of are error overruled. prejudice such an in amendment would him maintaining his action or defense on OF EXPERT EXCLUSION (Supp. merits. Tex.R.Civ.P.Ann. 66 & 67 TESTIMONY 1985). The decisions the trial court planned apparently Jerry MKT to call granting or denying a trial amendment Simmons, employee an of the Texas Reha- may appeal except not be on overturned Commission, expert bilitation as an witness upon showing of discretion. abuse proof by to rebut Alvarez of of future loss Hardin, (Tex. Hardin v. 597 S.W.2d 347 earning capacity. The trial court excluded 1980). case, inAs this the objecting party testimony. Simmons’ generally resists the trial amendment appeal, In its brief on MKT states that surprise. basis the trial court excluded Simmons’ testimo- previously, ny As mentioned MKT’s trial he not been because had disclosed an day days offered expert amendments witness at least fourteen be- placed for first in supplementation would have in issue fore trial of defendant’s interrogatories. question plaintiff’s time the whether Alvarez failed answers by MKT suggested MKT is not a real admits that under witness” Tex.R.Civ.P.Ann. one, readily apparent 168 as amended in it is that testimo 1981 and in effect at the trial, time of concerning subjects ques the trial court the three ny was authorized to exclude expert only opinion from an inferences drawn wit- tion could ness whose name had previously not been hearsay information. While Simmons response appropriate disclosed to an in- possessed, by special virtue of his no doubt However, terrogatory. argues MKT skill, knowledge experience, capacity interrogatory this case no such had been inferences than an to draw better filed Alvarez. say an person, this is “expert” to such matters. relative See 22, 1982, July days On before five Grantham, (Tex. Moore v. case, the trial of this MKT filed what 1980). The trial court determined styled “Supplemental to Plain Answers testifying would be that Simmons Interrogatories Previously tiff’s Filed though expert capacity even called as Interrogatory Federal number Court.” “fact Since Simmons was dis witness.” 61(c) specifically asked whether the “... expert, disqualification qualified as an specifically employed defendant retained or all matters about which he encompassed any purpose any expert not identified in testify by giving expert opinion. response prior interrogatories In ...” supplement interrogatory, to this MKT did call Simmons as an Jerry stated: “Defendant call Sim exceptions. Sim While witness bill mons as a ex ... vocational rehabilitation pay testified to some rates substan mons pert testify employabili on Mr. Alvarez’s the expert the witness for tially lower than Further, ty earning capacity.” and a hourly an rate plaintiff, he also testified to 14, 1982, July attorney for letter to the substantially in pay of for oil-field workers Alvarez, “Supplementing MKT stated: our hourly pay testified to rate excess interrogatories previously answers to filed Taking expert witness for Alvarez. the cause, please in this advised defend be whole, testimony as a it is clear Simmons’ Simmons, Jerry may ant call ... as a voca evidence, error, the exclusion of this tional rehabilitation ...” While “reasonably as was was not such an error interrogatories being supplemented do not an to cause the rendition of calculated ... record, appear part as it is clear therefore improper judgment ...” and was material from the before us that MKT was (1985). 434 Points harmless. Tex.R.Civ.P. responding “appropriate to one or more and fourteen are accord of error thirteen interrogatories” listing Simmons as an ingly overruled. expert witness whose name had not been previously disclosed. We hold under Rule TO SUPPORT LACK OF EVIDENCE 168 that was an undisclosed ex Simmons EARNING LOSS OF FUTURE by the trial pert witness excluded CAPACITY court. sixteen, error fifteen and points In disqualified After Simmons was evidence, argues that there was testimony concerning opinion giving alternatively, insufficient evidence and loss of future employability and Alvarez’s findings concerning loss jury’s support urged that be earning capacity, MKT capacity. earning of future a “fact witness” testify as permitted to point, we (1) reviewing a no-evidence ser In matters: concerning certain related favorable only the evidence Rehabilitation must consider by the Texas supplied vices disregard all jury and pay Commission; (2) and rates of to the answer jobs contrary. In inferences to the handicap; with Alvarez’s evidence to a man available point, evidence considering an insufficient (3) and con pay for oil field and rates weigh all of the evi- and must review employment. The distinction be we struction contrary to dence, including any evidence “expert and a “fact witness” tween 372 Calvert, jury’s Therefore, answer. “No prejudice Evidence” the driver. might Evidence” driving Points Er- attach to while intoxicat- “Insufficient

ror, Also, ed Texas L.Rev. 361 would not be a concern here. recovery will be determined under MKT contends that when Alva of comparative negligence. rules The position, rez’s actual goals interest and are slightest degree contributory negligence account, taken in clearly there was no loss recovery, will bar un- which makes it earning capacity after the accident. necessary give plaintiff the benefit However, personal injury in a case the of every doubt in order to avoid the harsh damages measure of is the diminished contributory negligence results of the old earning power capacity plaintiff, rules. earnings. not his lost Greyhound actual prejudice” “Unfair should not con- Lines, (Tex. Craig, Inc. S.W.2d 673 merely strued bar evidence that has an n.r.e.). Civ.App.1968,writ ref’d The record adverse or detrimental on party: effect appeal is filled with evidence of a dimi Texas courts have sometimes used earning capacity following nution “prejudice” word to refer to mere adver- injury, and this will Court not hold as sity or party. detriment But sub- a matter of one-legged law laborer authority rejects stantial this earning has the same capacity as a man evidence, ground excluding prop- possessed of all limbs. Points of error erly applies “prejudice” the term to emo- fifteen and sixteen are overruled. tional, irrational, or improp- other similar of the trial court af- grounds. er decisional firmed. Advisory fed- Committee’s note to suggests eral rule 403 two variables SMITH, Justice, EARL W. dissenting. enter the decision whether below, respect- For reasons set out I exclude evidence the basis of unfair fully dissent. I believe trial court (1) prejudice: probable effectiveness in refusing abused discretion to allow limiting jury; instruction to the intoxication; in refusing evidence of to al- (2) availability the of of other means amendment; low MKT’s proof. refusing and in to allow of Blakely, Relevancy Article IV: Its and one of MKt’s witnesses. I would Limits, 151, (1983 20 Hous.L.Rev. 167-168 reverse the of the trial court. Handbook) (footnotes omitted); Tex.R.Evid. The trial not court should have excluded Burch, 685, see v. Howell 616 688 S.W.2d danger evidence intoxication because n.r.e.) (Tex.Civ.App.1981, (no writ ref’d er- creating prejudice jurors’ unfair proceed- ror to admit evidence divorce substantially outweigh minds did not ings spite allegation it would probative Ray, 2 value evidence. prejudice and bias toward defendants 1481, Texas Law of Evidence at 167-68 § directly de- since that evidence contradicted (3rd 1980). The of admissibility ed. rules allegation); fendants’ substantive Ledisco weight are not concerned with Viracola, 533 Financial Services v. given evidence; to the is a matter for 951, writ) (Tex.Civ.App.1976, S.W.2d 958 no jury. Id. at 166. See Tex.R.Evid.Ann. (debtor harassment; bill sued collector for 401, 402, (Supp.1985). 403 in finding error for trial court exclude showing “affrays” evidence debtor’s with DANGER UNFAIR OF PREJUDICE neighbors neighbors such may have calls, type a harassing Intoxication is of evidence that made the court said inflammatory “[ajlthough great its nature tends to an have caution should be ob- prejudicial admitting and effect. The overall context served in evidence of collateral mind, kept or the case should be how- acts which would tend extraneous no prejudice against party, ever. There is contention that Alvarez a it should create

373 raised), rely on tend either direct driver was Alvarez could be allowed when it would and care Ledesma Ledesma’s skill because ly negate to establish or or inference (at least, a 0.0 was not intoxicated he blew issue”); principal fact Hussmann v. test) on a and there was breath knew Sherman, 829, 20 832 Leavell & S.W.2d Therefore, crossing in the railroad area. (Tex.Civ.App.1929) (court party stated “a Alvarez, prior knowledge to his deprived cannot be of the benefit of evi tracks, on the vehicle was stalled railroad dence is relevant material be keep He duty was under no a lookout. may tendency preju cause it also have a asleep seat could have been the back eyes in the party dice the adverse contributorily negligent on being without (Tex.Comm’n jury”), 643 aff’d, 32 S.W.2d lookout; i.e., any proper the issue of App.1930, judgmt adopted). charge Alvarez been awake and that had alert, have seen heard the train PROBATIVE VALUE able and would have been to warn Intoxication relevant to several issues is escape from the faster be- driver or car evidentiary an in the case. Intoxication is cause he train saw the earlier. consider, along the jury fact that however, lookout, proper The issue of circumstances, other to determine whether up seems cover events to the time person committed some act or omission tracks driver car stalled on the and the constituting Wilson, negligence. Benoit v. perceived off get that he could the car 273, 792, (1951). 150 Tex. 239 S.W.2d the tracks in time avoid the collision intoxication, alone, standing Evidence of car; i.e., got out the time the sudden negligence. does not establish Id. Intoxi- upon passenger them. A emergency was cation does not lower the standard of care duty has a emergency who aware person, to which the holds a however. law protect himself. use care to reasonable Fraser, Antonio San Public Service Co. v. Keller, supra. Even Edmondson v. 948, (Tex.Civ.App.1936, 91 S.W.2d though does not the same passenger have writ). does, duty of that the he is lookout driver passenger’s A duty slight. of care is A reasonable, pru- obligated to behave as a read, passenger may scenery, look at person protect under the dent himself sleep being guilty contributory without emergency shows conditions. evidence negligence if neg the driver commits some the car stalled on that Alvarez knew alert, ligent passenger, act that could tracks, Tijerina as did and Ledesma. prevented. Edmiston Texas & tracks, Once stalled Co., N.O.R. 135 Tex. Tijerina, passengers, duty had to use passenger ordinarily A can emergency cir- care under reasonable rely vigilance driver’s skill un extricate Evi- cumstances to themselves. passenger past experi less the knows from pro- dence of Alvarez’ intoxication would ence or the manner in which the is driver explanation why one the driv- possible vide operating likely the car that the driver to escaped plenty passenger er other Id.; inattentive or careless. be Edmond did not. time while Alvarez Keller, (Tex.Civ.App. son S.W.2d is relevant to Alva- Intoxication whether n.r.e.). writ ref’d exiting the rez’ car was that conduct general concerning principles These a using ordinary care. ordinary person an passenger’s duty in the of care arisen con- This conduct is intertwined with both considering passenger’s duty context a by tributory negligence, encompassed case, In keep proper to a lookout. this that he in such a pleading MKT’s was possible Alvarez’ intoxication would admit- drunken that he failed to use ordi- stupor tedly to the himself, have less relevance issue of nary the protect care and with proper lookout keep failure a than admits proximate issue cause. Alvarez Assuming he other issues. Ledesma in his the in which was brief that manner (the proximate possibility Tijerina exited the is relevant driver was car gave cause. following him, The court other occupants shouting defini- at tion proximate jury: cause to the oncoming actually get- train until he was “proximate

The term ting car, riieans a out of the he first cause” when saw the which, cause in a natural testimony and continuous train’s light. This is consistent sequence event, produces an and without out, being asleep, passed or intoxicat- event such not have oc- ed, having and inconsistent with been proximate curred. To be cause of an enough they awake know had event, the cause must such be that a stopped stop sign. at the He testified that reasonably prudent person, in the exer- got he back seat of the car and care, cise of should have reason- habit, locked his door as was his and that ably or anticipated foreseen that such usually he drove a car. two-door When he event or similar event would follow such escape, (or tried the lock jammed cause probable as a natural and conse- work; could it not make his was quence light attending in the cir- door). “tugged” that he at the He first may cumstances. There more than forward, push tried seat as one does proximate event, one cause of an two-door, jumped then over the seat. proximate there can be one sole testimony presents His problems. several cause. If an act or omission of any Tijerina, owner, the car’s testified all person proximate was sole cause of four working doors and locks were all occurrence, an then no act or omission of right, “as far as he Alvarez knew.” seem- any person prox- other been could have ingly attempts to acts of attribute his first imate cause. forward, pushing seat jump- and then An occurrence be an unavoidable seat, ing over the front rather than at- is, accident; proximate- event tempting back to slide across the seat and ly by negligence any party caused door, passenger exit the rear to the left to it. reflexive, panic-stricken of one acts who added). (emphasis Indeed, it is undis- usually car. drives two-door Such an puted escaping missed injury Alvarez explanation seems rather odd unless Alva- second, fractions of a particularly it is usually rez passenger a backseat in a proximate relevant to the cause issue two-door, than usually rather someone who speed whether the ap- train’s and time in reflexive, panic- drove a two-door. The plying the brakes caused be hit stricken act of driver of a two-door would impaired possibly whether Alvarez’ reac- seem to slide the car to be to across proximate tions were a the train opposite If door. he was not aware of the hitting him. There was evidence that oncoming actually until train he was exit- applied brakes of the train had been when ing car, deposition, why as stated in his engineer first saw that the vehicle was panic try did he jump over the seat tracks, stalled on the the collision with the emergency before he was aware of the car would have occurred in event. inducing pan- responsible condition his testimony concerning his exit ic? many the car contains inconsistencies. subject Alvarez’ exit from the car is the stopped He testified that the car at the those inconsistencies other than created stop sign at the railroad tracks. He was testimony. Looby Officer testified also aware that car had stalled on the questioned Tijerina Looby, told when tracks. These statements would indicate accident, at the of the scene being asleep alertness inconsistent with exited out the rear door. Alvarez’ testimo- or in an stupor, alcohol-induced but would ny specifical- not on direct examination did intoxication, not rule out taken with his exited; ly identify the door from he actions, other explanation as an of his fail- just jumped ure he said that he over the ordinary exiting to use care in front However, cross-examination, question vehicle. a deposition, his he seat. On had testified that he was not even aware of to “going that referred Alvarez’ out” the contradictory jury re- believe that Alvarez be- right The could front door drew Tijerina’s testimony reasonably emergency did not circum- sponse. trial under haved car. escaped from the describe how Alvarez inconsistencies his stances and that He testified that he did not know what they explained by panic; or behavior are doing. Alvarez was Ledesma testified did not that Alvarez’ behavior could believe see did not have a chance to what was standard, part, meet the reasonableness happening to Alvarez. intoxication; jury or the could because of conduct, believe, piius view Alvarez’ MKT’s Intoxication is also relevant to intoxication, that the failure evidence of complaints concerning requested special timely of the application MKT to make re- contributory negligence1 issues on proximate not a brakes was amendment, requests quested trial as these accident, Alvarez, the car who knew pleading placed center on its that Alvarez tracks, keep failed to was stalled on the stupor himself in such an that he alcoholic lookout, negligence and a appropriate pro- proper which was could not take actions to injuries. If It must be proximate tect himself. evidence of intoxication cause of allowed, arguably were MKT would another remembered that the driver and amendment, “placed time, trial no need for a passenger had not to exit stupor himself in such a drunken that he car, attempt flag to down the but also to appropriate protect not could take action to get out of yell train and to at Alvarez enough encompass himself” is broad jury The should be able vehicle. requested issue on failure to use weigh aspects all of Alvarez’ conduct care the car. explains it. determine what The contention is made that evidence of contention, slight. intoxication is That A TRIAL MKT’S ENTITLEMENT TO

however, go weight seems to more to the AMENDMENT admissibility. of the evidence than to its sought a trial amendment exception following bill shows the change paragraph III of its First Amended testimony. having Alvarez admitted to Original to read: Answer jury may, two or three drinks. The pleads as an affirmative de- Defendant not, need believe the of an inter contributory negligence. plaintiff’s fense Louis, ested witness. Simmonds v. St. B. contributorily negligent Plaintiff was Co., Ry.M. 127 Tex. & S.W.2d failing keep proper lookout and (1936). Sulik, Brackenridge Emer Karen ordinary care in exit- failing to exercise nurse, testified, gency Room not to intoxi injury. to avoid ing the automobile such, strong cation as but to the smell of pleading is called to the If a defect in a Alvarez, admitting alcohol on while trial, during the court court’s attention things cross-examination that other could pre- freely amendment should allow smell. The cause that evidence need subserved sentation of the merits will be any particular that Alvarez met test show satisfy the objecting party fails to and the intoxication, driving such as that for of the amendment court that allowance simply aspect intoxicated. It is one while maintaining him in his ac- prejudice conduct. Alvarez’ Tex.R.Civ.P.Ann. 66 tion. of intoxication is relevant Evidence proposed amendment should MKT’s provides issues in this case. It several MKT did not surprised Al- not have Alvarez. explanation alternative reasonable attempt change the factual basis or theo- to the he advanced. varez’ behavior one removing path following from the special himself 1. MKT issues contributory negligence. question? court re- train on the occasion in find, preponderance fused to submit them. you Do from a [6B.] evidence, find, proxi- you preponderance of that such failure was Do from a [6A.] evidence, Guadalupe question? Alvarez failed of the occurrence in mate cause ordinary exiting use care in the automobile 376

ry its of affirmative of See, defense contrib- out and unsafe e.g., driver. Putter v. utory negligence. allegation The that Al- Anderson, 601 S.W.2d 73 (Tex.Civ.App. placed varez himself in such an alcoholic 1980, n.r.e.) (abuse writ ref’d of discretion stupor that he appropriate could not take deny to plaintiff’s amendment where protect actions to himself allega- is a broad pleadings adequate showed of notice de This pleading put tion. should have Alva- suit). fense privilege in libel rez on notice MKT referring was to requesting diligence lack party’s in extricating Alvarez’ conduct himself can deny be a reason to a trial amendment. car, from the alleged since MKT had other Co., Wendell v. Central Light Power and specific relating acts to the driver’s un- 610, 677 (Tex.App.1984, S.W.2d 619 writ trustworthiness and Alvarez’ failure to n.r.e.). MKT, however, ref’d was not dem- lookout, keep proper go both of which to to diligence. onstrated have lacked Much happening events before the ear stalled on is made standing of MKT on the same general tracks. The rule is that broad grounds three of contributory negligence pleadings special exceptions years: filing four original an- lodged given been are 26, April swer requesting 1978 to leave to liberal construction. See Stone v. Lawyers 27, July amend on 1982. A close examina- 183, Corp., (Tex. Title Ins. case, tion of the chronology how- 1977). Such a allega- construction of this ever, four-year figure. reveals flaw in the easily equate tion could “appropriate ac- 9, 1978, From October when Alvarez took a protect tions himself” “ordinary deposition, to (prior sometime auto,” care in getting since out 4, 1981) November when he sent notices to the auto was the method available take depositions, apparently more did protect to Alvarez to To himself. limit the nothing to advance the case. MKT filed a construction of MKT’s specific allega- three motion prosecution to dismiss for want of negligence tions of occurring events be- (overruled May 12, November train, fore Alvarez discovered the as the 1982). charge Alvarez thus seeks to does, majority opinion essentially makes years between two and three of his own allegation “failing protect himself” expedi- failure to move the case forward redundant. specific Since MKT’s other tiously. addition, In Alvarez not file did acts necessarily occurring went events special exceptions July until 1982. The the time said he discovered before exceptions response were in to MKT’s train, approaching it is reasonable to 16, 1982, July pleading amended interpret specific allegation the other grounds contributory attacked those covering any other methods which Alva- negligence that had been file since 1978. rez protected could have himself. It Until special Alvarez filed the exceptions, difficult to think of how he could have MKT reasonably could believe that Alvarez protected himself by using other than ordi- pleadings. excep- understood MKT’s nary get care to out of the car. MKT’s tions were not ruled on before If trial. pleadings give adequate notice that all of ruling sustaining Alvarez had obtained a during emergency Alvarez’ conduct special exceptions, then MKT would part would be factual of its basis opportunity have had the amend an- of contributory negligence. defense special exceptions. swer Arguably to the pleadings Alvarez’ and his MKT’s notice it first would have a demonstrate that he understood that his problem pleadings with its came when conduct was at issue. His reliance on court ruled motion limine that emergency” “sudden and his assertion that sought to exclude mention intoxi- he used emergen- care under that requested permission cation. MKT cy shows awareness that con- pleadings day. amend its the next duct—all of at it—was issue. The “emer- gency” was not limited happening to events Since trial amendment could not have i.e., peril discovered; before the look- party requesting caused and the surprise,

377 expert, Bentley, lack reconstruction John testi- the amendment did not demonstrate a diligence, Bentley extensively the trial court should have fied. testified concern- amend, ways ing MKT to and it was an the ramifications of different allowed permit have chosen to exit the car. abuse of discretion not Alvarez could through by exiting He the left amendment MKT. concluded greater rear door would have covered great- and in all likelihood taken a distance BY TRIAL CONSENT oncoming of time to clear the er amount A review of the evidence shows that the the route chose: over train than Alvarez issue person of whether Alvarez acted as a right In the seat and out the front door. exiting care would have in words, contended, other by car was tried consent. MKT was there was Alvarez’ conduct reasonable under the pleadings fore entitled to amend its to con circumstances, possible it was also the best form to the evidence. Tex.R.Civ.P.Ann. 67 choice under the circumstances. Whether (1979). If the record demonstrates that this was so or not a fact issue for the fully evidence on an issue has been devel jury. oped evidencing the under circumstances parties’ understanding that the issue was The current case is much closer to Watts Hall, being decided, (Tex.App. Mary’s then an issue has been tried v. St. 662 S.W.2d55 n.r.e.). by ref’d consent and the court should allow writ Watts involved McDonald, employment 2 of contract claim in an pleadings. amendment of the breach 8.07, (rev. Texas Practice at situation. Plaintiff’s direct re Civil 293-94 § 1982); regula e.g., Corp. Tyler, ed. see Realtex vealed that she had broken school tions, aware, (Tex.App.1981, 627 S.W.2d about which she was concern no writ). ing reporting by students. alcohol use “good pleaded While neither side cause” or Alvarez asserts that evidence discharge,” “wrongful the court held that pleaded admissible on one issue then a In by both issues had been tried consent. party’s object failure to to that evidence case, his raised the own evidence in being by does not result an issue tried issue of the reasonableness of his conduct consent, relying principally on Herrin exiting Equitable the car. See also Transportation Parker, Co. v. Roland, (Tex. Trust Co. v. 644 S.W.2d 46 n.r.e.). (Tex.Civ.App.1968, writ ref’d writ) (admission App.1982, plaintiff no exiting Alvarez’ conduct in the car was longer sought relief as a cred “proximate relevant and admissible on the payment itor conceded issue and therefore issue, contends, cause” and therefore he consent, by though the issue was tried even objected could not have to that evidence at improperly pleaded it had been under Rules principle by its introduction so the of trial 95). 94 and apply. consent cannot Herrin is distin- guishable case, from the current concedes that his conduct in exit- however. Alvarez ing Herrin and similar cases arose circum- the car was relevant to the issue of party claiming proximate by stances in which the that an contention that be- by issue had tried consent introduced cause his conduct was relevant on that been issue, applied object to pleaded evidence that to both a he did not need to evidence Thus, unpleaded party prevent that conduct in order to trial and an issue. resisting the claim of consent not on the issue of the reasonableness consent reasoning, how- only would not have had a sustainable ob- of that conduct. Alvarez’ ever, evidence, precisely jection to the introduction of the fails to consider how Alva- put proximate relevant causa- that evidence not have even him rez’ conduct is could, unpleaded exiting the car on notice that an issue was be- tion. Alvarez’ acts case, conduct, contrast, negligent been ing tried. In the instant if found to be injury. can put proximate cause of his There in issue his con- himself first proximate cause of an the car when his accident be more than one duct only event. The acts submitted to jury, along the copies any documents sub however, were Alvarez’ failure to keep a mitted to them. MKT objected also to this proper lookout, which does not involve his request. Again, no ruling obtained was exiting car, conduct in the various acts objections. may Alvarez have properly by passenger MKT and the other and driv- requested experts the names of MKT’s er of the car. Evidence of Alvarez’ acts in interrogatories court; filed federal we car, exiting however, could only be say “may because have” one must make proximate relevant to causation insofar as this by determination referring to MKT’s negligent Alvarez’ acts were proxi- answers, papers as nowhere in this mate cause accident. Evidence of any proper by cause does request Alvarez Alvarez’ conduct in exiting the car was not appear.2 necessary support an issue whether The majority opinion holds that MKT’s MKT timely brakes, failed to apply its response, “Supplemental labeled Answers whistle, sound only its etc. The way the to Interrogatories Court,” filed in Federal jury properly could evaluate the issue of support sufficient for the record to Alva- proximate cause was to have Alvarez’ acts rez’ contention that MKT failed to disclose in exiting the ear to in submitted it order to expert according to the rules and so consider proxi- whether those acts were a (MKT penalized. should be claimed that it and, mate injuries, so, cause Alvarez’ any was not duty under to file this re- percentage negligence to assign to sponse.) shows, however, The record those acts. Alvarez never requested the Because issue of whether Alvarez experts, put names of the so as to MKT reasonable, prudent person behaved as any supplement. under duty ruling This consent, the car was by tried compliance” allows Alvarez a “substantial was entitled to a trial amendment and sub- (i.e., requests standard Alvarez’ attempted jury. mission of that issue to the in federal and state court should be read together sufficient, and considered al- EXCLUSION OF EXPERT TESTIMONY though obviously conformity not in strict party serving interrogatories must rules, with the figure because MKT could request specifically of experts the names meant), out what applying while who be called Meyer as witnesses. MKT, “strict compliance” standard to Houston, land Royal Inc., Co. v. Palais that MKT strictly should be held to the (Tex.Civ.App.1977, 538 limit,3 fourteen-day though MKT even vol- writ). interrogatories filed in untarily expert’s identity disclosed instant case did not request names of adequate time for Alvarez to have taken experts MKT, by who would be called recognized defensive measures to meet the rather persons asked the names of all expert’s testimony. generally See Nation- any services, indirect, performing direct or al Surety Corp. Rushing, 628 S.W.2d 90 MKT, connected with the accident. in its writ). (Tex.App.1981,no interrogatories, answers to this set of ob jected question. problem to this of admitting never ob ruling objection. tained a There of an “undisclosed” has a diffi- been fore, MKT did not answer the cult one for Texas courts. As noted in a portion. objected-to Tex.R.Civ.P.Ann. 168 recent Kilgarlin, appellate article Justice (Supp.1985). Alvarez request also filed a courts applied have not consistent stan- production, review, identi dards in their of dis- abuse ty persons standard, experts, consulted as cretion allowance denial court, discussing 2. The disposition first filed in federal record federal action.) by stipulation court spring was dismissed in the (according 1978 MKT’smotion dismiss for days equivalent 3. Now 30 under the Tex.R.Civ.P. only prosecution, place want of in the (Supp.1985). Ann. 215-5 ally expert’s testimony. wages Kil recalled of a little over $5.00 of the undisclosed garlin, examination, per What do with the Al- hour. On cross $6.50 Unidentified Expert, sug He Tex.B.J. questioned Simmons about varez’ counsel gests that the burden should be on the area, stating jobs Giddings in the oilfield party seeking the admission of the testimo saying “could not be that Simmons ny good to show require cause sufficient to per jobs paid those $5.00 $6.50 its admission and that the rule should be answer was that it de- hour.” Simmons’ require amended to that court to state pended type job, that he had record; pointing cause on the that out trying “seen some statistics” was courts, view, incorrectly place some in his Alvarez’ counsel then asked remember. opponent the burden on the to show sur per above hour would be correct $10.00 continuance, prise, for move etc. While it jobs range. Simmons answered that some would have been difficult to determine the well; pay would that that a driller would proper in standard this case had there been money earn that kind of but that he did not expert, an unidentified the fact remains average roughneck believe that the would proper request that there was never a for Therefore, earning money. be that kind of testifying experts. the names of per figure hour cannot be seized $10.00 Alvarez contends that Simmons’ testimo- in on isolation to demonstrate that Sim- ny him, actually helped rather than rebut- testimony mons’ does not Hansen’s. rebut ting Hansen, expert, his because Simmons Although Simmons’ cross-examination tes- wage testified to a for oilfield workers of timony garbled, is a bit it is clear that he hour, per figure higher $10.00 than that giving per was not hour as an aver- $10.00 calculating used Hansen in Alvarez’ loss age types for all of oilfield work but earning did, indeed, capacity. Simmons attempting he was to make a distinction as point agree figure at one to a for $10.00 earning capacity types jobs between jobs. however, some figure, oilfield That requiring may may He various skills. analyzed must be the context of Sim- witness, persuasive not since have been a which, whole, mons’ testimony, taken as a he that he not familiar with admitted was testimony. rebuts Hansen’s jobs, some of these that is a matter of Hansen per based his estimate of a $3.00 credibility jury weigh. for the While hour loss in wage-earning capacity on a figures Simmons reduced his to a never per differential, hour $7.50/4.50 with $4.50 differential, per-hour capacity as did Han- being his estimate earnings of Alvarez’ in sen, wage ranges gave result he would light the kind of industrial work that he earning averages in different for lost ca- accident, perform could after the and $7.50 And, pacity. important as the rebuttal of being per earnings his estimate of hour value, testimony the dollar Simmons’ also construction, heavy manufacturing, and oil- assumptions rebuts Hansen’s about physically field work that was in- per- type of work that Alvarez could have capable performing after the accident. by pointing injury formed before the out Simmons, examination, on direct testified place- other factors in vocational involved starting wages light manufacturing physical capacity, ment evaluation besides ranging up per $4.25 $5.07 long-time demonstrated such as Alvarez’ hour. He then testified that he was work, and admitted desire for inside very familiar with construction and oilfield rates, accompanying wage lower work; wages depended those areas earning capacity have limited his job job; he whether a was a union Too, there the accident. even before placed had client as a non-union framer planned a little or no evidence that Alvarez hour; per union, and that $4.30-35 change his vocation before the accident. heavy pay construction work would $6.50 whole, testimony per Taken as Simmons’ hour. He then testified that he could Hansen’s, wages anyone though quality placed not recall he had in tends rebut area, testimony may open question, oilfield in this gener- work but that he be since Simmons admitted that was not

very heavy familiar with industrial oil- jobs. might

field jury indeed isolate per figure,

Simmons’ hour as did $10.00

majority opinion, and use it. Such an eval- credibility,

uation the witness’ and the

weight to given entire however, earning capacity,

Alvarez’ future jury’s

is the function. above,

For the reasons set out I believe discretion, the trial court abused its

and its errors were such as were reason-

ably cause, calculated to probably did

cause, the improper judg- rendition

ment. Tex.R.Civ.P.Ann. 434 I reverse the trial

court.

Tony REED, Appellant, Harold Texas, Appellee.

The STATE of

No. 05-85-00350-CR. Texas,

Court Appeals

Dallas.

Jan. 1986.

Case Details

Case Name: Missouri-Kansas-Texas Railroad v. Alvarez

Court Name: Court of Appeals of Texas

Date Published: Jan 8, 1986

Citation: 703 S.W.2d 367

Docket Number: 13870

Court Abbreviation: Tex. App.