National Union Fire Insurance Co. v. Wyar

821 S.W.2d 291, 1991 Tex. App. LEXIS 2810, 1991 WL 240468
CourtCourt of Appeals of Texas
DecidedNovember 21, 1991
Docket01-90-01054-CV
StatusPublished
Cited by29 cases

This text of 821 S.W.2d 291 (National Union Fire Insurance Co. v. Wyar) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Union Fire Insurance Co. v. Wyar, 821 S.W.2d 291, 1991 Tex. App. LEXIS 2810, 1991 WL 240468 (Tex. Ct. App. 1991).

Opinions

OPINION

COHEN, Justice.

Appellee, Dennis K. Wyar, won a workers’ compensation award from the Industrial Accident Board (I.A.B.). Appellant, National Union Fire Insurance Company (National), sued in the district court to set aside the I.A.B. ruling. The trial court granted Wyar a directed verdict on liability and submitted a damages issue to the jury. Based on the directed verdict and the jury verdict, the trial court rendered judgment for Wyar.

In its first and second points of error, National asserts Wyar’s pleadings do not support the judgment because Wyar pleaded for “medical expenses unpaid” and “past due” compensation, but the court awarded judgment for all medical expenses and other benefits, including amounts already paid. National contends this resulted in a double recovery for Wyar.

Wyar pled he was entitled to “receive benefits not exceeding the maximum weekly benefit for the maximum number of weeks” prescribed by law, and he prayed for benefits compensation “at the maximum rate for the maximum number of weeks prescribed by Texas workers’ compensation law.” National did not file special exceptions. Consequently, we must construe Wyar’s pleading liberally in his favor. Roark v. Allen, 633 S.W.2d 804, 809, 810 (Tex.1982). Under that standard, Wyar’s pleading gave fair notice of the claim. Tex.R.Civ.P. 45.

National’s first and second points of error are overruled.

In its third point of error, National asserts the trial court erred in not allowing it to call Wyar as a witness. The trial court sustained Wyar’s objection that National could not use him as a witness because National did not designate Wyar as a witness in response to interrogatories. National did not name Wyar in response to Wyar’s interrogatory requesting names of persons with knowledge “of any facts relevant to the incident made the basis of this suit.”

Failure to respond to a proper interrogatory generally results in the exclusion of the unidentified person’s testimony. E.F Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987). The unidentified witness may testify only if the offering party proves good cause for failing to identify him. Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669, 671 (Tex.1990). The burden of establishing good cause is on the party offering the evidence, and good cause must be shown in the record. Id.; Tex.R.Civ.P. 215(5). National presented no evidence of good cause for failing to list Wyar.

National relies on NCL Studs, Inc. v. Jandl, 792 S.W.2d 182, 186 (Tex.App—Houston [1st Dist.] 1990, writ denied), and Henry S. Miller Co. v. Bynum, 797 S.W.2d 51, 57 (Tex.App.—Houston [1st Dist.] 1990, writ granted). In both cases, the trial judges found good cause to let the unidentified witness testify. This Court held the trial judges did not abuse their discretion in finding good cause under the facts of those cases. Miller, 797 S.W.2d at 58; Jandl, 792 S.W.2d at 186. In Jandl, we reviewed each of the trial judge’s six reasons for finding good cause and held that five did not constitute good cause. The only good cause we found in Jandl was that the unidentified witness was a party to the case. Id. This case differs from Miller and Jandl in two respects. In those cases, the party called himself to testify, and the opposite party objected. Here, National called Wyar, the adverse party, to testify, and Wyar objected to his own testimony, not to that of some opposing party. Moreover, the Miller and Jandl decisions upheld the trial judge’s discretion. National asks us to hold that the trial judge here abused his discretion.

We find the trial court abused its discretion under these particular facts.

[294]*294Wyar testified as a fact witness concerning the amount of a liquidated offset, i.e., the amount of money National already paid him. The factors in Miller that distinguished it from Sharp v. Broadway National Bank, 784 S.W.2d 669, 670 (Tex.1990), are also present here. Miller, 797 S.W.2d at 58. Moreover, the troublesome problems foreseen by Justice O’Connor in her Miller dissent are not present here. Id. at 63 n. 11. This is not a case of multiple parties, where each might claim a right to call one unidentified witness, nor is it a case where a corporation might call any of its many unidentified agents. Id. In such a case, a trial judge might not abuse his discretion by excluding the testimony of an unidentified party. Thus, we do not hold that every party in every case can always present its fact testimony without naming itself in answer to discovery.1 Here, we have only one party plaintiff and that plaintiff is an individual. Under these circumstances, we hold that he should have been allowed to testify. In Gee v. Liberty Mutual Fire Insurance Co., 765 S.W.2d 394, 395 n. 2 (Tex.1989), the supreme court said that, although lack of surprise is not “the standard,” it may be “a factor” for the trial court to consider when weighing whether good cause exists for allowing the testimony of an undisclosed witness. Wyar could not have been surprised by his own testimony that he received $217 per week from the time of the injury until the month before trial. Under these unique facts, lack of surprise is a compelling factor favoring admission of the testimony.

Rule 1 provides that the purpose of the rules of civil procedure is to obtain a fair, just, and equitable adjudication of rights under established principles of substantive law. Tex.R.Civ.P. 1. That will not occur here unless we sustain this point of error. Overruling this point would deny National an offset for $49,693 that Wyar admitted he received. See point four below.

Point of error three is sustained.

In its fourth point of error, National contends Wyar’s bill of exception testimony established, as a matter of law, National’s right to a credit because he admitted receiving $49,693 in disability payments. Thus, National contends the trial court should have reformed the judgment to grant such a credit.

Wyar was injured on January 29, 1986. In his bill of exception testimony, he admitted receiving checks for $217 every week “since the injury,” without interruption, “at least through June (1990).” National correctly states that the period from February 1, 1986 through June 30, 1990 constitutes 229 weeks, which, when multiplied by $217.00 = $49,693.00. Relying on Old Republic Insurance Co. v. Diaz, 750 S.W.2d 807, 810 (Tex.App.—El Paso 1988, writ denied), Wyar contends his testimony was not specific enough to establish the amount he received. We disagree. Wyar’s testimony was more definite than that in Diaz. It furnishes the basis for an arithmetical calculation that supports the amount of National’s claimed credit. Wyar’s testimony conclusively established such payments; therefore, National should receive that credit.

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Bluebook (online)
821 S.W.2d 291, 1991 Tex. App. LEXIS 2810, 1991 WL 240468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-union-fire-insurance-co-v-wyar-texapp-1991.